So you’ve been laid off or have been benched without pay, and you’re concerned about your H-1B work status. Perhaps you’ve been without employment for months, and finally found an interested employer who told you that they would hire you, but their attorney told them that you were not fine to transfer because you don’t have pay stubs to prove that you were maintaining status. People have told you the standard advice that “there is no grace period” in H-1B once you lose your job, and that you are therefore now unlawfully present in the US.

The truth of the matter is, even when you’ve been laid off or benched, you might not necessarily have to leave the country, especially if your termination was due to your employer’s unscrupulous conduct. Factors that weigh into the analysis as to whether you may port your H-1B to an new employer in the US include: 1) whether you have an unexpired H-1B visa in your passport, 2) whether your employer failed to pay you for your work, 3) whether your employer threatened you in any way, and 4) how long you’ve been without pay.

The following flowchart relating to applying for a change of H-1B employer gives an idea of how these factors come into play:

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Shah Peerally is an attorney licensed in California practicing immigration law and debt settlement. He has featured as an expert legal analyst for many TV networks such as NDTV, Times Now and Sitarree TV. Articles about Shah Peerally and his work have appeared on newspapers such as San Jose Mercury News, Oakland Tribune, US Fiji Times, Mauritius Le Quotidien, Movers & Shakers and other prominent international newspapers. His work has been commended by Congress women Nancy Pelosi and Barbara Lee. He has a weekly radio show on KLOK 1170AM and frequently participates in legal clinics in churches, temples and mosques. His law group, Shah Peerally Law Group, has represented clients all over the United States constantly dealing with the United States Citizenship and Immigration Services (USCIS), Immigration and Custom Enforcement(ICE) and CBP (Customs Border Patrol (CBP) under the Department of Homeland Security (DHS). This department was formerly known as the Immigration and Nationality Services (INS).