Sean Richard OlenderImmigration AttorneySan Jose, CA ·
The short answer is no. But there is a lot you haven't said. First, there are two documents that control your immigration status: (1) your visa, and (2) your I-94 card and/or I-797 approval notice. Your visa is like a ticket to get into the United States. It need only be valid at the time you apply for admission. Then, at the port of entry, a US Customs and Border Protection Officer will issue you an I-94 card (generally stapled to a page in your passport). The I-94 card will have written on it: (1) a control number, (2) the three digit code of the port where you entered, (3) the date of your entry, (4) the status the officer admitted you into the United States in, (5) when that status will expire. If you file to extend or amend your H-1B status while inside of the United States, USCIS will issue you an I-797 approval notice that has a new I-94 card attached to the bottom of it listing your status and the dates of validity of that status.
If you are admitted in H-1B status, you generally violate that status by not working or by working at a location, salary, or by performing job duties not authorized in your H-1B petition. Here, if you were laid off, you violated your status for what you described as more than a year. If you try to apply for a new visa at the US consulate, this long period out of status may persuade the consular officer to refuse to grant you another visa to visit the United States for a few years. Then again, it may not. It depends on your explanation for the status violation and how much time has passed between the status violation and when you apply for your next visa.
But there is a more serious type of status violation and that is where you remain in the United States beyond the expiration date of your H-1B I-94 card or I-797 approval notice. That I-94 card lists an expiration date. If you remain in the United States for six months beyond the expiration of your authorized period of stay, you may face a three year bar to reentering the United States. If you remain for a year or longer beyond the expiration date of your official status document, you may face a ten year bar to reentering the United States. These bars only attach once you depart the United States. Status violations will also bar you from adjusting status to permanent resident unless your residence application is based on a petition from a US citizen spouse, parent, or child.
The difference between these two types of status violations is significant. If you get laid off and remain unlawfully in the United States, you have violated your status. But if you remain beyond the expiration date listed on your I-94 card or I-797 approval notice, you accrue "unlawful presence" and periods of six months or longer of unlawful presence carry stiff penalties. Because you haven't said when your I-94 card expires, or expired, I don't know if you have accrued unlawful presence.
If you are merely trying to depart the United States, even if you have violated your status, it is unlikely that anyone is going to try to stop you from leaving. Your problem will arise only if you want to return to the United States in H-1B status, some other nonimmigrant status, or if you want to apply for permanent residence in the United States.
If you just want to leave and not return, you certainly don't need an attorney. But depending on the facts of your situation, you may face problems applying for a visa to return to the United States in the future.