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What can a H-1B holder do if they lose their job and are ordered to appear in Immigration court?
Laid-off H-1B workers in the U.S. are usually granted a 60-day grace period to find a new employer or change their visa status. However, since mid-2025, there has been a surge in reports of Notices to Appear (NTAs) being issued well before the grace period has expired.
This has caused significant stress and uncertainty for many H-1B visa holders and their families in the U.S.
According to PEW, 400,000 H-1B visas were approved in 2024. 73% of those visas went to workers from India. A vast majority of the H-1B visas each year are renewals.
What options are available to H-1B visa holders in such situations? To better understand the legal landscape and possible courses of action, India Currents spoke with Sameer Khedekar, Founder and Managing Attorney at Vanguard Visa Law in California.
This interview has been lightly edited for clarity.
Anjana: To give us a little bit of context on why we’re even having this conversation at this point in time, can you outline the changes that have occurred in the H-1B visa process in the last few months?
Sameer: I would say it’s apparent that the changes appear to be broader than just the H-1B community. It’s the entire kind of legal visa holder community of which H-1B’s are like the highest percentage (for Indian Americans). So it kind of makes sense that we focus on them because they have the most people here.
Let me back up a little bit — In February of this year, USCIS issued a memo policy update saying that they will issue notices to appear (NTA) in immigration court to anybody who is not of lawful status in the US.
So we thought it makes sense, right? I mean if you are not in lawful status, you might end up in immigration court. That made sense to us, and we didn’t really think too much about it. They provided a bunch of examples that had nothing to do with the H-1B community.
Then in early July, we started hearing of people who had been working in H-1B jobs who were laid off or left a company for whatever reason. Whenever you leave an H-1B job, whether it’s through a layoff or even voluntarily, the company is required to notify USCIS, and the reason they’re required to notify USCIS is, if they don’t, the employee can come back and claim back wages for the period of time, even after they left. So the company kind of has to do this.
And the question is, when do they have to do it? The regulations say immediately, but immediately, like instantaneously, or most companies do it anywhere from a few days to a few months after the employment ends.
So now the other part to remember is that when an H-1B holder or any visa holder leaves their company, they get a 60 day grace period, which in the regulations is discretionary. But never since 2016 or 2017 when the grace period was implemented, has the government chosen to exercise their discretion not to give it to people.
So it’s been pretty much uniformly awarded to anybody who’s left their company. And people have used that time, the 60 days, to either find new employment and get a new H-1B transfer or change their status to H-4 or B-1/B-2 while they wait for a job and then go back to H-1B.
The B-1/B-2 to H-1B was a strategy actually almost encouraged by the Biden administration. Post covid, there were a lot of layoffs when companies started realizing they had over hired. In 2023/2024, you remember all the layoffs that happened, and many of these were H-1B holders.
So what the Biden administration said is, if you’re laid off, you have options. If you have an H-1B you have a 60 day grace period. You can also apply to change to a B-1/B-2 change in the US. And then if you find a job and you get sponsored for an H-1B, we may just kind of put you back in H-1B if you have a pending B-1/B-2. So basically, there’s a pending application that’s keeping you in a period of authorized stay. And they even had a website that kind of explained it.
So, remember I told you about the February memo by USCIS. Then in March/April, the Trump administration archived that web page. We’re like — what do they mean by that?
In June, they started issuing the NTAs to people. So you can kind of see the timeline, right? They are going after people who are laid off and trying to get them kicked out of the country, Number one. And they’re trying to do so in a way where they’re not even recognizing the grace period.
Anjana: Can you walk us through the process that happens?
Sameer: So what’s happening is somebody leaves their employer — the company withdraws H-1B. That withdrawal has USCIS almost autotrigger a notice to appear in immigration court regardless of what that person has done in the interim to maintain their status — apply for a B-1/B-2, apply for an H-4 or all the things I told you. They’re not even really looking. They’re saying — you are not in status and you have to go to immigration court.
So it turns out, they are in status — like some have applied for an H-1B transfer in that interim, some have applied for an H-4, some have applied for B-1/B-2, but the NTAs don’t reflect that at all. So we’re taking people to immigration court, and we’re getting those cases dismissed, because for those that have actually changed their status, changed their employer or applied for B-1/B-2, the courts say they’re not deportable. The courts are starting to dismiss them one by one.
Now, every judge is different, every court is different, and the result is not guaranteed. So multiply this by all the layoffs we had in May and in June — Microsoft, Intel, lots of different firms and multiply this by how many people this is happening to and you can kind of see the chaos that it’s creating.
If you’re going to leave your job or if you’re going to be laid off, you might end up in immigration court. You might get deported. For people who have been here and who is this affecting the most — it’s the people that can’t get green cards because they’re stuck in the longest backlogs. Who are they? Indian nationals. You have to connect a lot of dots to see who this is really affecting. 99% of our clients right now are Indians.
Anjana: This 60-day grace period — is it a law, or is it an executive action?
Sameer: It’s a regulation. However, the regulation does say it’s discretionary,
Usually, unless there’s some compelling reason that it shouldn’t give it to them. That’s kind of what we had all thought discretionary meant. But it seems like, in this case, the government saying discretionary is we just are deciding not to for no reason whatsoever.
What’s problematic is that the judges so far that we’ve seen are not necessarily disagreeing with USCIS. They’re not saying — this person applied for a change of employer in the grace period. Therefore, they maintain their status.
What they’re saying is they applied for the change of employer before the NTA was issued, So, this whole thing is eroding the grace period in many ways.
Anjana: What steps should a person on an H-1B visa take after being laid off or changing their job to maintain their status?
Sameer: Number one, they should be very clear as to when their employer is going to withdraw their H-1B, because that has so far been the trigger. If they were to leave their company, and they know this is happening, and they have enough time — talk to their employer about not withdrawing the H-1B until at least the grace period is done. The employer may not choose to. They are going to do what they’re going to do, but you could at least have that conversation.
Previously, people have been pretty passive about this topic, because it’s kind of an awkward thing to talk about. But now I feel like there’s enough understanding and people know this is happening, so I think it’s definitely something an employee should ask. When are you going to withdraw the H-1B? Can you wait until the end of my grace period because, as you know, when you withdraw an H-1B, it’s triggering NTAs. So many companies are actually waiting for the end of the grace period to withdraw H-1Bs but it depends on the company,
Anjana: So, there is no difference from a legal point of view on whether you got laid off or you’re choosing to change jobs for a better one?
Sameer: Yeah because I had a client who is 37 ½ weeks pregnant with her second child, and she’s like —I’m going to change to H-4 because I want to stop working so I can get ready for my delivery. And so she left her job and she changed to H-4 but the H-4 process takes 6 to 8 months. So she’s in a pending H-4 application, and the company had to withdraw the H-1B and she got an NTA.
Anjana: That was my next question. How are a non-working spouse and children affected if the H-1B holder changes jobs, loses their job, or is issued an NTA?
Sameer: That’s what’s scary. How many calls have I had where the family’s been living here for 10 or 12 or 15 years; the child is a nine-year-old standing next to the mom during the zoom, watching his mom panic while I’m talking them through what is happening. The specter of families being separated because of this.
Now, what I’m finding is that everybody has done what they’ve had to do to maintain their status in some way — whether it’s changing to H-4 or having a green card pending or having an EAD. There’s something and they’ve tried to follow the law, and what I’m finding is that we generally can get their cases dismissed because of that so far.
It’s early, this has only been happening a few weeks but it seems like we’re able to get the cases dismissed. So we’re hoping that this is just going to be a huge annoyance for them, but for the most part, we can convince the courts not to deport anybody and to dismiss the case because the person has already taken steps to preserve their status or stay in the US.
The problem is there are second-order implications. Even if you get a case dismissed, you still have to go for visa stamping. You have to answer a question at the consulate — have you ever been in a removal proceeding? You have to say Yes. And what is that going to cost? Is that going to cause 221(g) delays? Is it going to cause stamping denials because the consulates are kind of their own entity —they’re not really answerable to anybody.
What about when you return to the US? Is this going to be on their record, the CBP record at the airport? Are they going to be questioned about this? Indians are in this process forever, so are they gonna have to be doing this for the rest of their lives?
Anjana: What options are available if a visa holder is unable to secure employment within the 60-day grace period?
Sameer: This is an evolving kind of area. The safest thing to do would be to leave the country because if you leave before the NTA is issued, then you can absolutely get the case dismissed. There’s nothing you can do to prevent an NTA. You can’t call somebody and say Hey, I’ve left, don’t issue the NTA. The government’s going to do what they’re going to do.
What a person has to do is to put themselves in a position where they can easily get the case dismissed if they get an NTA. So, leaving the US before the NTA is issued is the best course.
Now, people don’t receive NTAs for a few weeks after they’re issued. Follow the court. So you need to track as soon as it’s issued, not when you get it. There are notice laws that protect you to help you throw a case out if you didn’t get it on time. There’s a website where people can look up their file number to see if an NTA has been issued.
Anjana: What if you get an NTA and you don’t have a job yet?
Sameer: Your question is what should you do in the grace period? So one option is to leave, but that’s not feasible if you have kids, and so we’re starting to find that if you take some sort of action, like file to change your status to H-4. Let’s say your spouse is on an H-1B, you file to change to an H-4 online right as soon as you leave. That seems to be enough.
We’ve got some cases dismissed where somebody had applied for an H-4, or certainly if you find another job in the 60-day grace period and a company transfers to H-1B, and even if it’s pending, that seems to be enough that you have an H-1B pending. You’re in status. You’re working for that company. That seems to be enough to get a case dismissed.
I heard of one case where somebody actually filed for B-1/B-2 in the grace period, and it was pending, and they got their case dismissed. That’s the riskiest because B-1/B-2 only gives you a few months, and so how compelling is that going to be to a judge?
In some cases, it seems like the judges are just annoyed by this, and for any reason they might have to dismiss a case, they will, because they’re like — What are these cases that are coming in? We’re dealing with people who are applying for asylum, who have no status. What are these new NTAs that are coming in for people who actually have cases on file with the government and are not out of status?
It’s risky, but it seems like so far a pending B-1/B-2 may be enough to allow you to help get your case dismissed.
Anjana: And this is also true if your spouse is not working, therefore, you cannot switch to an H-4 right?
Sameer: You can’t switch an H-4 under those circumstances, and maybe B-1/B-2 is your only option then, and trying to get back in H-1B. But the problem is that they may not approve the B-1/B-2 to H-1B like they used to. In fact, we have an indication, and we have a case right now, where it seems like they don’t want to do that.
So then that would require the person to travel, and if they don’t have a visa, to re-enter, to activate the H-1B, and if they have to go get a visa stamp – that’s a delay. They have to say they were in court proceedings. So it’s going to cause a lot of confusion and chaos.
Anjana: An additional consideration is the status of an H-1B holder who is partway through the green card process. How does this affect their legal ability to remain in the U.S. or transition to a different employer at this point?
Sameer: This is what we’re really concerned about. Some people have had pending green cards for a long time now — AOS pending, working on EADs. And we’ve always kind of been like — try to maintain your H-1B if you can also. We never know what will happen, but you don’t have to, because you have the EAD.
Now, we hope everyone’s maintaining their underlying H-1B because the pending green card is not by itself a status. It’s like a period of authorized day, and it’s not guaranteed a judge will say that’s enough to stay in the US anymore. So I have a client like that. She just came to us. We’re gonna file for her dismissal in about a week or two, and we’ll see what the court says there.
Anjana: This is a point of confusion for a lot of people, the fact that once you’ve been selected for the H-1B lottery and it’s been approved, if you change your job again, you don’t have to go through the lottery again. Even though an H-1B is tied to your job, winning the lottery means that it’s kind of tied to you in a way too, right? Can you explain this?
Sameer: For the most part, that’s true. Once you’ve been picked at the lottery, and you’ve activated that H-1B, had the H-1B approved, and you’ve started an H-1B status, then you don’t have to go through the lottery again. Unless you’ve exhausted your six years of H-1B time and have been out of the US for more than a year. But for the for the most part, 99% of people don’t have to go through the lottery again once they’ve been selected and they’ve activated their H-1B.
Anjana: As you can imagine, many H-1B professionals right now are incredibly anxious — they have well-established families here and given the current instability in the Tech market and the political environment, what steps can they take proactively in case they are laid off or thinking about switching jobs? What can they start thinking about and preparing for in advance?
Sameer: (First) find out when the company’s going to withdraw the H-1B because that is a necessary trigger. Next, constantly check on the link to see if an NTA has been issued. Everyone has a different situation. Talk to an attorney and get advice what you could do.
Anjana: To clarify, your own personal immigration attorney, not your company’s attorney, right?
Sameer: Your company attorney is generally not going to help because their obligations are with the company. They also don’t have the bandwidth. Let’s say the company lays off 1000 H-1B holders. A company can’t talk to each person. They don’t have the time.
NTA is an immigration court procedure, and so it’s this weird kind of area that most H-1B lawyers don’t understand – most Immigration Court lawyers don’t understand H-1Bs. But you have to understand immigration court procedure if you’re a lawyer, and then you have to understand H-1B law to get a case dismissed. That’s what I would recommend.
Anjana: Are you seeing a decline in the number of people choosing to stay in the US? Is there a noticeable decrease in visa applications or approvals for H1, O1, L1 kind of visas?
Sameer: What we’ve noticed, and I think the stats kind of back this up, is that the number of student visa holders or student visa applications has decreased considerably. That’s the usual way Indian nationals make their entry into the US. That’s a pipeline. And then once they’re here, they stay. So the ones that are here, I haven’t seen them personally go back yet, but I’ve certainly felt their stress. I could feel the confusion it’s causing in their life. But I haven’t seen them go back yet.
Anjana: Can you also talk about non H-1B NTAs that you are seeing?
Sameer: So it’s not just H-1Bs that are getting NTAs now. There’s a company that had an employee on an L-1 visa. They had layoffs, and they laid off the L-1s except that you don’t have to notify USCIS about L-1s. That L1 notification triggered NTAs.
I actually talked to that company. They’re not my client, but I know the person who runs immigration there. I told them, please stop doing that, because any notification that USCIS gets that a visa ends, they are turning that into an NTA whether or not the person has changed status or not.
Anjana: Are you seeing any immigration changes affecting families visiting on a B-1/B-2 visa?
Sameer: If you’re a U.S. citizen or green card holder and your mother or father comes to visit on B-1/B-2, and let’s say they stay for six months; they need to be here for two more months because they’re helping with the grandchild. You apply for an extension, and they’re issuing an NTA if you are still here after the B-1/B-2 period has elapsed, even if you applied for an extension and that extension hasn’t been approved.
Anjana: This could affect their ability to obtain a B-1/B-2 visa or be allowed entry into the U.S. in the future, right?
Sameer: Here’s what’s happening. Let’s say in this case, the person applied for a three-month extension. By the time the NTA arrived, it was right on schedule for the three months. And I sent my mom home because she was going to overstay the three months that I requested. But he sent her home after the NCA was issued, which is a no-no. And he’s like — you wanted me to have her stay past the three months? I’m like, this is like the rock and the hard place people are finding themselves in.
It’s worse to actually leave after an NTA is issued, because then a judge can say, we are barring you from entry for five years because you left after you’ve been called to immigration court. Even if the court hearing is way far out, which is also what’s happening because the government is firing judges, and cases are backlogged for years. So some hearings are not until 2027 or 2028.
The system is not set up to handle this kind of permutation. So what I would do in that case, depending on timing, is — if you’re in court, you can request voluntary departure, which is basically like, let me self-deport, let me leave right with your permission. And then if you do that, you don’t accrue any period of time unlawfully present. So that would be the solution. But still, you have to disclose that in the future, like you said.
I don’t know how much worse this is going to be. Is this like a blip? Is this going to continue? It’s hard to say right now.