US Immigration Questions

Yes. Under federal regulations, if an employer terminates an H-1B employee before the end of their period of authorized stay, the employer is liable for the reasonable costs of return transportation to the worker's last place of foreign residence. This does not apply if the worker resigns voluntarily. If an employer refuses to provide this, the worker may file a complaint with the Department of Labor (DOL) Wage and Hour Division.

A one-month gap is perfectly acceptable as long as you do not exceed the total allowable unemployment days. For the initial 12-month OPT, you are allowed 90 days of unemployment. If you transition to the 24-month STEM OPT extension, you receive an additional 60 days, for a total of 150 days over the entire period. Any unused days from the initial OPT period carry over into the STEM extension period.

You remain in I-485 Pending status. Your status does not automatically convert to a Lawful Permanent Resident (LPR) just because the primary applicant was approved; each individual application must be adjudicated. As long as you have a valid Employment Authorization Document (EAD), you can continue to work legally in the United States. You are no longer in your previous non-immigrant status (like H-4) once you begin relying on the I-485 pending status or the EAD.

 Under the American Competitiveness in the Twenty-First Century Act (AC21), you can "port" your green card process to a new employer if your I-485 has been pending for 180 days or more and you have an approved I-140. If you are laid off before the 180-day mark, you are in a more precarious position. However, if your employer keeps you on the payroll via severance, your official termination date (the date you no longer have a "bona fide" job offer) is what typically triggers the legal concern. You must find a "same or similar" occupational role to maintain the validity of the underlying green card petition.

Prepare a cover letter stating that you previously sent an email and are now uploading the corrected form with the right box checked. You should also verify if you are still within the timeframe to refile the case if necessary.

On Friday, Sept. 19, 2025, President Donald J. Trump signed a Proclamation, "Restriction on Entry of Certain Nonimmigrant Workers," that took an important, initial, and incremental step to reform the H-1B visa program to curb abuses and protect American workers.

This Proclamation:

• Requires a $100,000 payment to accompany any new H-1B visa petitions submitted after 12:01 a.m. eastern daylight time on Sept. 21, 2025. This includes the 2026 lottery, and any other H-1B petitions submitted after 12:01 a.m. eastern daylight time on Sept. 21, 2025.
• Authorizes the Department of Homeland Security and the Department of State to coordinate to take all necessary and appropriate action to implement this Proclamation.
  • U.S. Citizenship and Immigration Services has so far taken such action by issuing guidance regarding the Proclamation, available here (PDF, 177.48 KB).
  • U.S. Customs and Border Protection has also issued guidance, available here.
  • The Department of State has posted guidance to all consular offices, consistent with the guidance from U.S. Citizenship and Immigration Services and U.S. Customs and Border Protection guidance. 

This Proclamation does not:

• Apply to any previously issued H-1B visas, or any petitions submitted prior to 12:01 a.m. eastern daylight time on Sept. 21, 2025.
• Does not change any payments or fees required to be submitted in connection with any H-1B renewals. The fee is a one-time fee on submission of a new H-1B petition.
• Does not prevent any holder of a current H-1B visa from traveling in and out of the United States.

Further steps that will be taken to reform the H-1B program, as contemplated in the Proclamation, include:

• A rulemaking by the Department of Labor to revise and raise the prevailing wage levels in order to upskill the H-1B program and ensure that it is used to hire only the best of the best temporary foreign workers.
• A rulemaking by the Department of Homeland Security to prioritize high-skilled, high-paid aliens in the H-1B lottery over those at lower wage levels.

Additional reforms are also under consideration and will be announced in the coming months.

This question is particularly important because continued accrual of unlawful presence during removal proceedings can trigger the three-year or ten-year bars, severely limiting future immigration options.

General Rule: Yes, Unlawful Presence Continues

Once removal proceedings commence (i.e., when the NTA is filed with the immigration court), unlawful presence generally continues to accrue while you are physically present in the United States. The Board of Immigration Appeals (BIA) has consistently held that the three- and ten-year unlawful presence bars under INA S212(a)(9)(B)(i) continue to run while a noncitizen is in removal proceedings.

This can create a particularly harsh situation where individuals are caught in a Catch-22: they often cannot leave the United States while fighting the removal proceedings (as departure could be deemed an abandonment of their case or trigger an automatic removal order), but staying continues to accumulate unlawful presence, potentially leading to more severe bars.

For more details, read the full blog post: Another Problem for Legal Immigration: NTAs (Removals/Deportation Despite Legal Stay.