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This question is for an acquaintance. He is on an H1-B visa and was wondering what would happen if someone applied for a job which requires a drug test and if they fail, what the consequences are. I know for citizens and permanent residents the job is not offered but for visa holders, would any government entities be notified? Would there be a risk of deportation?

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An H1-B visa is applied for by an employer, but once it is issued (which would ordinarily happen before traveling to the U.S. for employment), the employee can transfer that visa to another employer.

The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) and the U.S. Department of Labor's PERM system for labor certification erased most of the earlier claimed arguments for H-1Bs as indentured servants during the green card process.... Because of AC21, the H-1B employee is free to change jobs if they have an I-485 application pending for six months and an approved I-140, and if the position they move to is substantially comparable to their current position.

The fact that an employee fails a drug test would make it necessary for the employee to find a new position that is comparable to the one of the applying employer, but the government would not be notified that the employee failed the drug test and failing the drug test, per se, is not grounds for deportation. The government would only be informed that the H-1B visa holder was no longer an employee of the sponsoring employer.

Of course, this doesn't mean that an employee who failed a drug test will have an easy time finding new comparable employment within the required six month period. Most new employers would ask why the employee was not hired or fired by the original H-1B visa sponsors and would check the reference.

Many drug testing employers, upset at having wasted the great expensive and scarce supply of H-1B visas on someone who failed a drug test would not hesitate to prevent that sponsored immigrant from benefiting from their work by informing potential new employers of the failed drug test (which they would have no legal liability for doing).

If the H-1B visa employee who was not hired or was fired for failing a drug test did not find new comparable work within six months, the visa would expire, and that individual would be deportable if (1) the Department of Homeland Security chose to begin deportation proceedings, and (2) the employee could not obtain another visa (e.g. a spouse visa following a marriage to a U.S. citizen) that would allow that individual to obtain a valid visa on some other grounds, and (3) the H-1B employee had no valid reason to claim asylum in the United States due to a threat of persecution if deported. But, the deportation proceedings could easily take many months or years if a colorable defense to deportation was raised in the initial deportation proceeding because U.S. immigration courts (which are administrative law tribunals) are greatly backlogged and there are a couple of levels of appeal from an initial immigration court determination.

Also, once the visa expired, it would be illegal for a U.S. employer to employer the former holder of the H-1B visa.

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  • This answer seems to confuse expiration of the H-1B visa with expiration of H-1B immigration status. When someone is inside the US, the expiration date of the visa has no importance whatsoever unless that person wants to leave and reenter the US. – phoog Oct 8 '17 at 18:15
  • @phoog Clarification would be welcome, either in a separate answer or in a comment. – ohwilleke Oct 9 '17 at 20:03
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    I don't know enough to post a separate answer, but in brief, the visa needs only to be valid up to the day of admission to the US. If the conditions of H-1B status are no longer met, the person is "out of status." Expressing this as an "expired visa" is imprecise, though common in discussing people who entered the country legally but overstayed their welcome. See travel.state.gov/content/visas/en/general/…. (When one is out of status, the visa is also invalidated, but that only has implications for future attempts to enter the US.) – phoog Oct 9 '17 at 21:13

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