In light of recent layoffs in the tech sector, where the H-1B visa is heavily utilized, we have prepared a brief discussion of what are the possible options for H-1B workers who lose their job to remain and continue to work in the United States. First let’s examine what happens when an H-1B worker terminates their employment, either voluntary by quitting their job or involuntary by being laid off or fired and then discuss your options.
H-1B grace period when laid off
US regulations provide for a grace period that allows workers who hold a US nonimmigrant visa such as the H-1B but also E-1, E-2, E-3, L-1, O-1, or TN to be considered as having maintained status after the end of their employment for up to 60 calendar days.
During this period, the worker can search for new employment, and either continue with an H-1B or change to another work visa such as E-2, E-1, L-1, O-1 or similar. The worker can also file for adjustment of status to permanent resident (green card), if eligible.
Alternatively, if the worker is unable or unwilling to find new employment, switch to a different nonimmigrant status or is otherwise ineligible to apply for permanent residency, he or she can use the time allowed in the grace period to put his or her affairs in order and depart the United States.
To summarize, when an H-1B worker is laid off, they must secure sponsorship from another company within 60 days, change to another status or apply for an immigrant visa, if applicable, or leave the country. Below we discuss the various options for laid off H-1B workers.
When does grace period start?
The grace period starts on the last day of the H-1B employment when the employee is no longer employed with the H-1B employer. Upon termination of employment, the employer has to send a letter to USCIS, informing them the H-1B employer-employee relationship has ended.
In some cases, when layoffs are involved, the employer continues to keep the employee under its payroll for period of 2-3 months as form of severance. In this case the last day of employment period is when the employer sends the letter to USCIS and when the grace period starts. However, if you have been laid off make sure to check with HR if you will be kept on payroll for a time or severance will be paid as lump sum, and also check when the company intend to send the letter to USCIS notifying of the H-1B layoff.
Employee options for H-1B layoffs
If you are on H-1B visa and you have been laid off, your options to stay in the United States are:
- Find a New H-1B Employer
- Use of Part Time H-1B
- Change to another nonimmigrant status
- Apply for immigrant visa (green card)
Find a New H-1B Employer
H-1B workers who left or lost their job can use the grace period to find a new employment. Under current rules, they can start working again for a new employer as soon as the new employer files an H-1B petition on their behalf and gets a receipt number from the United States Citizenship & Immigration Services (USCIS). In this case the worker and employer do not need to wait for the petition to be approved. However, if USCIS denies the petition, the H-1B worker has to stop working and leave the country. It is important to note that the new H-1B is not part of the H-1B visa numerical limit or cap.
For most workers who were in the process of obtaining a green card through employment but were laid off, loosing the H-1B employment could mean that they need to start the PERM process from the beginning. However, in limited circumstances, where a worker has an adjustment of status application pending for at least 180 days, the worker can transfer the underlying immigrant visa petition to a new sponsoring employer in the same or similar occupational classification as the old employer. If you have been laid off from your H-1B position during the PERM process, it is recommended to contact an immigration attorney to discuss your case.
Use of Part-Time H-1B
The part-time H-1B may be useful only if your employer does not lay you off but instead agrees to transition your H-1B job to part-time employment. The part-time H-1B can allow an employer to avoid layoffs or avoid concerns over revenue for full time employment.
The employer must file an amended H-1B petition with USCIS to change a full-time employee to a part-time employee or vice versa.
Change to Another Status
For workers who do not wish to continue being on H-1B status, either because they have been laid off or wish to start their own business or because they are approaching the maximum 6 year stay period under H-1B, there are a number of other options, either as business owners or as employees of another company.
Here it is important for H-1B workers to turn to an immigration lawyer that is not the immigration attorney of their current or former employer, but an attorney that is hired by them personally to protect their interests.
- E-2 Treaty Investor or an employee of an E-2 Treaty Investor. This visa or status is available only to citizens of countries that have a treaty with the United States. For a detailed list of countries whose citizens have E-2 visa available see here. The E-2 visa is for individuals who make or are in the process of making a substantial investment in a commercial enterprise in the United States. Substantial means the investment is large enough to give the business a good chance of success and can vary based on the type of business. For example, $100,000 can be enough for a restaurant but $1 million might not be enough for a manufacturing business. The investor can either create a new US business, invest in or purchase an existing business or franchise. To learn more about investor visas visit our investment immigration page here.
- L-1 Visa for Intracompany Transferee allows a multinational company to transfer an executive, manager or an employee with specialized knowledge relating to the company’s business interests from one of the employer’s foreign offices to one of its US offices. There are two types of L-1 Visas – L-1A for executives and managers and L-1B for employees with specialized knowledge. The main requirements for the visa are the employee have been continuously employed full-time by the company abroad for at least one year in the 3 years prior to L-1 visa application and that the employer must be doing and continue to do business in the US and at least one other country. To learn more information, visit our L-1 visa page or L-1 visa for Canadians.
- O-1 Visa for Individuals with Extraordinary Ability or Achievement is a nonimmigrant visa/status which allows individuals with extraordinary abilities in the sciences, arts, education, business or athletics to temporary come to the US together with their spouse and children to continue to work in the area of extraordinary ability.
- TN Canadian and Mexican Professional Workers status/visa allows citizens of Canada and Mexico to work in the US for an initial period of 3-years. The TN classification is created by the US-Mexico-Canada Agreement (USMCA) which replaced the NAFTA and is only available for certain professions approved by the USMCA agreement. There is no cap on the number of TN visas issued each year.
- E-1 Visa. E-1 visa for treaty traders and employees of treaty traders may also be an option provided that all requirements are met.
Unlike finding and changing to a new H-1B employer, with any of the options above the applicant will not be able to start working immediately after the petition is received by USCIS but will have to wait for the final USCIS approval to begin work.
In this case, filing of a non-frivolous application to change status will stop the accrual of unlawful presence until the application is approved or denied. If an application is approved, then the individual’s status is considered to have been in a period of authorized presence the entire time the application was pending. If the application was denied, then the individual starts to accrue unlawful presence the day after the denial was issued.
Apply Directly for Green Card
Some H-1B employees may be eligible to directly self-petition a green card and adjust their status while remaining in the US without changing to another nonimmigrant status. Examples of immigrant classifications that allow self-petitioning include EB-1A for Individuals of Extraordinary Ability, EB-2 National Interest Waiver and EB-5 Immigrant Investors.
Moreover, those who have a prospective employer that is a university or other institution of higher education or a private employer seeking to fill a research position and otherwise meet the requirements can apply for EB-1B green card for outstanding professors and researcher. EB-1C green card for multinational managers or executives can also be an option if you meet the requirements and you have an offer from a US company who is willing to petition for you. For both EB-1B and EB-1C green cards, no PERM labor certification is required.
Premium processing of 45 days is available for certain immigrant petitions such as EB-1 and EB-2 NIW for an extra fee. With premium processing USCIS adjudicates your case in 45 days. Moreover, workers with a pending application to adjust status to permanent residents are generally eligible to remain in the US while waiting for a decision and can obtain work authorization.
EB-2 with a National Interest Waiver is available to foreign nationals who possess an advanced degree, a master’s degree or higher. An equivalent, meaning a bachelor’s degree plus 5 years of progressive work experience in the field, is also acceptable. To seek a National Interest Waiver under the EB-2, and request that the labor certification requirement be waived, one must show an advance degree (or equivalent) or exceptional ability and that being allowed to work and live in the United States would greatly benefit the nation. Applicants seeking an EB-2 with a National Interest Waiver may self-petition and do not need a U.S. employer to sponsor them.
EB-5 Immigrant Investor is a green card program available for those who invest at least $1.05 million or $800,000 if in a business located in an area with high unemployment or in a rural area. The investment must lead to the creation of at least 10 full-time jobs, be an active business and the investment funds must be legal. To learn more about the EB-5 visit our EB-5 page.
Malescu Law can assist
If you are an H-1B visa holder who has recently been laid off, contact us or book a consultation, to discuss with our experienced immigration lawyers in Miami, Florida USA what visa or green card options are available in your specific case.
Malescu Law P.A. – Business & Immigration Lawyers