As immigration attorneys, one scenario we frequently encounter is where foreign nationals part ways with the US company that sponsored their nonimmigrant visa. Regardless of who initiated the change, terminating employment/representation with the US company sponsoring the foreign national's visa requires immediate attention, ideally well before the change is to take place. It can be stressful for everyone involved. To allow all parties involved to prepare for and understand the implications, we have compiled some of the most frequently asked questions from foreign nationals.
My visa is still valid, right?
In short, no. When foreign nationals part ways with their petitioning US company, they are immediately out of status. Their petition and visa stamp are only valid for as long as they are employed in the position specified.
Before explaining this answer further, it is important to clarify the terminology. Foreign nationals often refer to different things when they reference their "visa." Most times, foreign nationals refer to their visa stamp, which is the physical page that has been laminated into the passport by a US Embassy/Consulate abroad. Other times, foreign nationals refer to their I-797 approval notice which signifies approval of the employer’s petition for a nonimmigrant visa from US Citizenship & Immigration Services (USCIS).
So in responding to the question, we would say that although their visa stamp may be unexpired, when foreign nationals are no longer employed/represented by their US visa sponsor, the underlying petition and I-797 approval notice become invalid. This is because the terms represented to USCIS in the underlying nonimmigrant visa petition have changed—namely the foreign national is no longer represented or employed with the petitioner. In other words, visa petitions are tied to the visa sponsor, and once foreign nationals cease working with their petitioning US company, their visa petition is no longer valid. Without an underlying valid approved I-797, foreign nationals will fall out of status.
Does this mean I have to leave the US right away? Is there a grace period?
When foreign nationals end their employment they fall out of status unless they leave the US. There is no official “grace period” for most work-related, petition-based visa statuses. With that said, while there is no section of the law that explicitly authorizes a “grace period,” Customs and Border Protection (CBP) in practice traditionally grants a ten-day period for foreign nationals to settle their affairs and depart the US at the termination of their visa status. (It is why foreign nationals often note they sometimes have ten days extra added to their stay when they enter the US.) Also, USCIS will grant a change of status or extension of status within thirty days of a foreign national's last pay check. This effectively allows foreign nationals a thirty-day grace period if they intend to have a new employer file a new petition or change to another status.
When does the clock start ticking? The simple answer is it starts ticking from the last day of employment with the petition sponsor.
What happens if my sponsor cancels my visa?
Again, terminology is very important in answering this question. A petitioning US company is not capable of canceling a visa stamp in a passport. The regulations, however, do specify that the petitioning US company must notify USCIS when it is no longer sponsoring the foreign national, which will result in the underlying visa petition being withdrawn, invalidating the I-797 approval notice. Even if an employer does not withdraw a petition, an I-797 is not valid beyond the last day of employment or representation.
My company has agreed to continue to sponsor me even though they no longer represent/employ me. Is that okay?
In a word, no. The US employer does not have the authority to authorize this arrangement. Only USCIS can authorize a change in the terms of the underlying visa petition. If the terms initially represented to USCIS are changed in any material way, then the underlying I-797 becomes invalid. In fact, while the US employer undoubtedly means this offer to be a kind gesture, this can be detrimental to foreign nationals because it may confuse foreign nationals into thinking that they are still in valid status, when in fact they are not. The kindest thing US companies can do when terminating their relationship with a foreign national they have sponsored is to put them in contact with a reputable immigration attorney.
Can’t I just tell immigration I have a new sponsor? Or do I have to start from the beginning again to get a new visa?
Unfortunately there is no mechanism to simply notify USCIS that foreign nationals have a new sponsor. The new sponsor must file a new petition with USCIS including all required forms, evidence, and filing fees. Whether prior evidence may be reused, simply updated, or whether entirely new materials will need to be gathered depends on what visa classification the foreign national holds and how long ago they obtained the approval notice, among other important factors.
Some visa categories lend themselves to a change of sponsor more easily than others. E-2s and L-1s, for example, are premised upon very specific investments and corporate relationships and most likely cannot be “transferred.” H-1Bs and O-1s can be more easily “transferred” since the focus of the visa is more upon educational background and professional accomplishments. Importantly, H-1B visa holders will not need to be counted against the CAP again.
Happily, in some circumstances, foreign nationals may skip the consular process and continue to use their current unexpired visa stamp for international travel as long as they also present the new receipt or I-797 approval notice (depending on visa classification) with the new sponsor upon admission to the US.
When can I begin work with my new sponsor?
This varies by visa classification. Foreign nationals who hold H-1B classification may begin working for their new visa sponsor upon receipt of the receipt notice for the petition filed by the new sponsor. Foreign nationals who hold most other visa classifications must wait for the new petition to be approved and for receipt of the I-797 approval notice before beginning work for their new visa sponsor.
It is important to note that if foreign nationals have parted ways with their current sponsor before the filing of the new visa petition, there may be a period of time where the foreign national is not authorized to work, even if they may remain in the US. This is just one more reason timing is crucial when considering a change of sponsor.
Can I continue to travel internationally?
If the foreign national is outside of the US when the petitioning company and foreign national part ways, the foreign national should not enter the US on their existing unexpired visa stamp. Because the terms of the underlying visa petition are no longer in place, it is considered fraudulent to present the visa stamp for admission into the US. Foreign nationals will need to remain abroad until a new employer has filed a new petition and in most cases until that new petition has been approved.
If foreign nationals are in the US, they are free to leave the US; however, the same rule with regard to waiting abroad until they have the proper documentation for their new visa petition applies.
Does my former sponsor have any obligations to me?
The regulations for most nonimmigrant visa categories specify that the petitioning US company will be liable for the return transportation of foreign nationals abroad. The requirement varies slightly by visa category, but overall this means the petitioning US company must pay reasonable costs of return transportation of foreign nationals to their last place of residence outside of the US if they are dismissed from employment/representation by the petitioning US company before the end of the period of authorized admission.
If foreign nationals voluntarily terminate their relationship with the petitioning US company, they are not considered to have been dismissed and therefore the obligation does not apply.
Changing a sponsor can be a stressful and busy endeavor, but with the right guidance from a reliable immigration attorney, it can be an exciting new opportunity! And of course, an immigration attorney can also provide more specific guidance than the general information presented above.