Layoffs for H-1B workers can result in tough times because there is limited time to find a new employer to file a new H-1B petition, apply to change status, or depart the United States without violating status. Even a one-day gap after the 60-day grace period expires means that the foreign national must leave the United States to allow USCIS to reinstate their status upon reentry.
H-1B workers who ignore the rules may face difficulty returning to the United States, or if still in the U.S., may even find themselves in removal proceedings, previously known as deportation proceedings. Employers who ignore the rules may also face steep penalties and even fines. So let’s review the options available to improve an already unpleasant situation.
First and foremost, it is imperative to speak with an external immigration attorney or an authorized internal immigration representative of the company to ensure you take steps to remain in compliance with the visa regulations.
There are 7 things you should be aware of:
1. Seeking New Employment Sponsorship
The primary purpose of an H-1B visa is to work for a specific employer in a specialized occupation. After a layoff, the H-1B holder may actively search for a new job with another employer willing to sponsor their H-1B visa. The new employer would need to file a new H-1B petition on behalf of the individual before they can start working. That petition must be received by USCIS prior to the 60-day grace period expiring.
2. H-1B Portability
If the H-1B holder finds a new job with a different employer in the United States, they may be eligible for H-1B portability. This allows the worker to begin working for the new employer as soon as the new H-1B petition is submitted to USCIS without waiting for approval. However, certain conditions must be met and it is H-1B specific with respect to whether the new employer is cap-subject or cap-exempt.
3. Grace Period
USCIS provides a grace period of up to 60 days for H-1B visa holders who have been laid off or terminated from their employment. During this period, the individual can remain in the United States and explore new employment opportunities, or even new visa options, or make necessary arrangements to depart the country.
4. Change of Status
If the H-1B holder cannot secure new employment and is eligible for different nonimmigrant status, they might consider applying for a change of status. For instance, they could consider changing to a B-1/B-2 tourist visa, F-1 student visa, or another suitable visa category.
5. Green Card – Adjustment of Status of Consular Processing
If the H-1B holder has an approved immigrant petition (I-140) with an immigrant visa number available, or is eligible for a green card based on family sponsorship or another category, they might consider applying for a green card to become a lawful permanent resident. The applicant may do this while inside the U.S. through an adjustment of status, or outside of the U.S. through consular processing.
6. H-4 Dependent Status
If the H-1B holder’s spouse also holds H-1B status, the laid-off individual might consider changing their status to H-4 if they meet the eligibility criteria. Depending on whether the spouse also has an approved I-140 will dictate whether the H-4 visa holder may apply for work authorization.
7. Returning to Home Country
If none of the previously mentioned options are feasible or desired, the H-1B holder may return to their home country after the layoff. Be sure to maintain lawful status during the grace period and make the necessary travel arrangements. It is important to note that the employer is required to pay the reasonable fees for return ticket to the visa holder’s home country.
Overall, it is essential to consider the specific circumstances, immigration history, and future plans before deciding on your course of action. Seeking legal counsel from an immigration attorney will provide the H-1B holder with personalized advice and guidance to navigate the post-layoff or termination situation effectively.
Drawing from my experience in large tech companies, financial institutions, and the film industry, I’ve found that understanding your options early on is crucial when facing a mass layoff. This knowledge allows you to make well-informed decisions, whether you’re considering employment with another company, changing your status, or returning to your home country. It’s vital to explore all potential avenues, and maintaining compliance with visa regulations is non-negotiable and of utmost importance.
As promised, here’s some bonus information that you may not know about:
Understanding the Availability of H-1B Visa Grace Periods & Unlawful Presence
There are some circumstances where the H-1B grace period is not fully granted by the Department of Homeland Security through USCIS. The grace period can either be shortened or completely refused due to fraud, unauthorized employment, or criminal charges.
If the visa holder is outside of the grace period and still physically present in the U.S., the visa holder will start accruing unlawful presence. If you accrue more than 180 days of unlawful presence but less than a year, then you will be barred from re-entering the U.S. for three years. If your unlawful presence exceeds 365 days, you’ll be barred for 10 years once exiting the U.S.
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