H1B Revocation vs H1B Withdrawal: What’s the Real Difference?
What You’ll Learn
In this article, we’ll dissect the distinctions between H1B Revocation and H1B Withdrawal, covering:
– Initiation processes
– Impacts on visa holders
– Employer obligations
– Grace periods
– Reinstatement scenarios
By the end, you’ll have a clear understanding of which option aligns with your situation.
Quick Comparison Table
Feature | H1B Revocation | H1B Withdrawal |
---|---|---|
Initiation Process | Initiated by USCIS due to employer actions; employer must notify USCIS upon termination. | Initiated by employer submitting a written request to USCIS to withdraw the petition. |
Impact on Visa Holder | Immediate loss of H1B status; may require new petition for reinstatement. | May maintain status if filed before October 1; withdrawal after October 1 may lead to grace period. |
Employer Obligations | Must notify USCIS upon termination; may be required to cover return transportation costs. | Must submit withdrawal notice to USCIS; may need to provide return transportation costs. |
Grace Period | 60-day grace period after termination. | Grace period applicability depends on timing of withdrawal relative to October 1. |
Reinstatement | May require new H1B petition; subject to H1B cap. | May necessitate re-selection in H1B lottery if filed before October 1. |
Overview of H1B Revocation
H1B Revocation occurs when the U.S. Citizenship and Immigration Services (USCIS) terminates an H1B petition, typically due to employer actions such as termination of employment or employer-initiated revocation. This process can lead to the immediate loss of H1B status for the visa holder.
Pros
– **Immediate Termination**: Provides a clear end to the employment relationship.
– **Employer Compliance**: Ensures the employer meets legal obligations by notifying USCIS.
Cons
– **Visa Holder Impact**: The employee may face challenges in maintaining lawful status in the U.S.
– **Reinstatement Challenges**: The employee may need to file a new H1B petition, subject to the H1B cap.
Overview of H1B Withdrawal
H1B Withdrawal is initiated by the employer submitting a written request to USCIS to withdraw the H1B petition. This process allows the employer to end the employment relationship without the immediate loss of status for the employee.
Pros
– **Employer Control**: Allows the employer to terminate the employment relationship while potentially allowing the employee to maintain status.
– **Flexibility**: Provides options for the employee to change status or seek new employment.
Cons
– **Employer Obligations**: The employer may be required to cover return transportation costs for the employee.
– **Timing Considerations**: The timing of the withdrawal can affect the employee’s grace period and options for maintaining status.
Side-by-Side Breakdown
Initiation Process
– **H1B Revocation**: Initiated by USCIS due to employer actions; the employer must notify USCIS upon termination.
– **H1B Withdrawal**: Initiated by the employer submitting a written request to USCIS to withdraw the petition.
Impact on Visa Holder
– **H1B Revocation**: Leads to the immediate loss of H1B status; the employee may need to file a new petition for reinstatement.
– **H1B Withdrawal**: If filed before October 1, the employee may maintain status; withdrawal after October 1 may lead to a grace period.
Employer Obligations
– **H1B Revocation**: The employer must notify USCIS upon termination; may be required to cover return transportation costs.
– **H1B Withdrawal**: The employer must submit a withdrawal notice to USCIS; may need to provide return transportation costs.
Grace Period
– **H1B Revocation**: A 60-day grace period is available after termination.
– **H1B Withdrawal**: The applicability of the grace period depends on the timing of the withdrawal relative to October 1.
Reinstatement
– **H1B Revocation**: May require a new H1B petition; subject to the H1B cap.
– **H1B Withdrawal**: May necessitate re-selection in the H1B lottery if filed before October 1.
Which One Should You Choose?
Deciding between H1B Revocation and H1B Withdrawal depends on your specific circumstances:
– **For Employers**:
– Choose **H1B Revocation** if you need to terminate the employment relationship immediately and are prepared to fulfill all associated obligations.
– Opt for **H1B Withdrawal** if you wish to end the employment relationship but want to provide the employee with options to maintain their status in the U.S.
– **For Employees**:
– If your employer initiates **H1B Revocation**, you may need to seek new employment or change your visa status promptly to maintain lawful presence.
– If your employer initiates **H1B Withdrawal**, assess the timing and your options to maintain status, such as finding new employment or changing status before October 1.
H1B Revocation vs H1B Withdrawal: The Final Verdict
Category | H1B Revocation | H1B Withdrawal |
---|---|---|
Best for Employers | Immediate termination of employment relationship. | Ending employment while providing employee options to maintain status. |
Best for Employees | Seeking new employment or changing status promptly. | Assessing timing and options to maintain status before October 1. |
Best Value | Clear termination process with immediate effect. | Flexibility for both employer and employee, with considerations for timing. |
Findings and Recap
Understanding the differences between H1B Revocation and H1B Withdrawal is crucial for both employers and employees. Employers should consider their immediate needs and obligations, while employees must be aware of their options to maintain lawful status in the U.S.
Need assistance navigating H1B processes? Consult with an immigration attorney to ensure compliance and explore your options.
Related reading: Understanding H-1B and OPT Cap-Gap Extensions
AI Image Prompt: A split-screen image showing an employer submitting an H1B Withdrawal notice on one side and USCIS processing an H1B Revocation on the other, symbolizing the contrasting processes.
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Frequently Asked Questions
What is the main difference between H1B Revocation and H1B Withdrawal?
H1B Revocation refers to the termination of an approved H1B petition by the United States Citizenship and Immigration Services (USCIS) due to specific circumstances, such as the employer going out of business or filing a written withdrawal of the petition. H1B Withdrawal, on the other hand, is the process initiated by the employer to voluntarily cancel the H1B petition before it is approved or while it is pending, typically when the employment relationship ends. ([uscis.gov](https://www.uscis.gov/policy-manual/volume-2-part-e-chapter-4?utm_source=openai))
How does H1B Revocation affect my employment status?
When an H1B petition is revoked, the beneficiary is no longer authorized to work for the employer, and the employment is considered terminated. The beneficiary must cease employment immediately and may need to depart the United States or seek alternative employment options. ([uscis.gov](https://www.uscis.gov/policy-manual/volume-2-part-e-chapter-4?utm_source=openai))
What steps should an employer take when withdrawing an H1B petition?
An employer must notify USCIS in writing to withdraw the H1B petition when the employment relationship ends. This notification should include a letter explaining the change to the director who approved the petition. Failure to withdraw the petition may result in continued wage obligations under the Labor Condition Application. ([entrylaw.com](https://www.entrylaw.com/h-1b-withdrawal?utm_source=openai))
Is there a grace period after H1B Revocation or Withdrawal?
Yes, there is a 60-day grace period granted to H1B holders upon termination of employment. During this period, individuals can seek new employment, change visa status, or prepare to depart the United States without being considered out of status. ([optdog.com](https://www.optdog.com/h-1b-visa/h1-b-visa-withdrawal-and-revocation/?utm_source=openai))
Can I transfer my H1B to a new employer after revocation or withdrawal?
Yes, you can transfer your H1B to a new employer. If your previous employer has withdrawn the petition or if it has been revoked, you can have a new employer file a new H1B petition on your behalf. It’s advisable to have the new petition filed before the termination of your current employment to maintain continuous status. ([entrylaw.com](https://www.entrylaw.com/h-1b-withdrawal?utm_source=openai))
What are the employer’s obligations regarding return transportation after H1B termination?
If the employer terminates the employment relationship before the end date of the H1B petition, they are required to offer return transportation costs to the employee’s home country. This requirement does not apply if the employee voluntarily terminates the relationship or if the relationship ends on the last date of the H1B petition’s validity. ([entrylaw.com](https://www.entrylaw.com/h-1b-withdrawal?utm_source=openai))
Can an H1B petition be reinstated after revocation or withdrawal?
Once an H1B petition is withdrawn by the employer or revoked by USCIS, it cannot be reinstated. If the employer wishes to rehire the employee, a new H1B petition must be filed, and the employee must be counted against the H1B cap again. ([entrylaw.com](https://www.entrylaw.com/h-1b-withdrawal?utm_source=openai))
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