For most beneficiaries, once their cap-subject case has been approved for a change of status to H-1B on October 1st, they can take a sigh of relief and wait for that October 1st date to come without trepidation. However, for some, an unfortunate situation could arise resulting in a job loss after the approval and prior to October 1st. So what are the options then for the beneficiaries stuck with this unexpected development?

Ideally your employer sponsoring the H-1B will not move to withdraw the H-1B prior to October 1st.  If your employer has not withdrawn the H-1B before October 1st, then you could find new employment and have the new employer file a cap-exempt change of employer (“transfer”) petition for you on October 1st. Even though the job loss may have occurred before you change status on October 1st, you can still be considered cap-exempt.  What if you cannot find a new employer quickly enough to file for your transfer on October 1st? Fortunately, you would be able to utilize the 60 day grace period for H-1B employees provided by the January 2017 regulations. If your new employer can file the transfer within 60 days of October 1st, then you will still be considered to have maintained your status for the purposes of that petition.

What if your employer already notified USCIS to withdraw your H-1B before October 1st? If the withdrawal is processed prior to October 1st, meaning the employer receives a withdrawal notice from USCIS stating the withdrawal has been processed, then it is likely you would not be considered cap-exempt as you were not actually in H-1B status before the H-1B was withdrawn. Based on current USCIS processing times however, any withdrawal would likely take several months to actually process, so this may be one of the few scenarios where the slow processing times are actually a good thing!

It is important to note that each situation is different; what may have worked for one H-1B employee may not necessarily apply to another. There may be facts specific to your case that mean the above guidance would not apply or may apply differently. If you are unsure what your options are, it is best to speak with an immigration attorney as soon as possible to fully discuss your unique situation.