Find a job or return to home country? An H-1B visa holder’s guide if they lose their job in the US
The unexpected layoffs of nonimmigrant workers in H-1B and other statuses at Twitter and other tech companies have created an environment of unrest among foreign workers. In view of this, a lot of questions and concerns on preserving one’s status in the U.S. have arisen, as listed below.
1. Upon termination of employment, do non-immigrant visa holders have any grace period to remain in the U.S. and look for a new job or change his/her status?
Yes, most work-related non-immigrant workers are allowed a grace period of 60 days upon cessation of their employment. Until the beginning of 2017, this provision was not available to non-immigrant workers, and hence, they would be considered to be in violation of their status immediately once their employment got terminated.
The 60-day grace period allows the worker more time to leave the United States, and at the same time presents an opportunity to transition to another employer who is willing to file an extension or change of status within the 60-day period.
2. Can foreign nationals who lose their job consider different visa options to remain in the U.S., even if it is for a short time?
Foreign national workers could change their status to another non-immigrant status such as, F-1 student status or B-2 visitor status under further guidance from an attorney.
3. If the worker finds a new employer who is willing to file a new H-1B petition on his behalf, will the worker in this case be subjected to the H-1B cap?
If the foreign national worker has been counted under the H-1B cap within the last 6 years, the new employer can immediately file for his H-1B transfer and does not need to wait for the H-1B cap registration period. Employers can sponsor laid off employees who have been counted in the H-1B cap within the past 6 years as these employees would not be subject to the annual H-1B cap again.
Even foreign workers in H-1B status, who are beneficiaries of approved I-140s in the green card process could be hired by new employers within the grace period. Such employees can seek US employment and render services from outside the US and eventually return to the US once their H-1B petition is approved and they receive a stamped H-1B visa from the US Consulate. A pre-existing H-1B visa may be used in conjunction with the newly approved H-1B petition to return to the U.S.
Although, if the employer wishes to file for a change of status application to H-1B for a laid off L-1 worker within the 60-day grace period, they cannot do so unless the worker has previously been counted under the prior H-1B cap. If not, the employer will have to wait to register the applicant for the upcoming H-1B lottery in March 2023.
4. What is the total period for which an H-1B can be extended?
The maximum time that a non-immigrant worker is allowed on an H-1B status is six years. If the worker has spent less than six years in the U.S., then, the new employer can seek to obtain the remainder of unused time in H-1B status for a maximum of six years. However, there are certain instances when a non-immigrant worker can avail for extensions beyond the six-year limit, namely, if he/she holds an approved
I-140 or has a pending I-485 Adjustment of Status which has been filed within one year of the final action date becoming current. It is best to secure guidance and practice utmost caution before proceeding with filing H extensions with latter provisions.
5. What happens if the terminated employee is allowed to remain on the U.S. payroll for a short period of time but is not permitted to be actively involved in work for the employer?
The correct term to describe an arrangement like this would be ‘Garden Leave’. To better understand the concept of Garden Leave, let’s consider that a worker is terminated on November 7, 2022, but continues to be paid from until the end of December 2022 while being in nonproductive status. In strict compliance with the regulations, it is best to consider that the non-immigrant worker’s termination occurred on November 7, 2022 rather than the end of December 2022 unless the worker is on leave – such as a medical leave or has suffered from some sort of disability to work.
6. If the non-immigrant worker has held an approved I-140 with his previous employer, can the new employer file for a new labor certification and subsequent I-140 without the worker losing his priority date?
The new employer in addition to filing a transfer of H-1B status may also file a new labor certification, and upon approval, file another I-140 petition for the non-immigrant worker. In this case, the priority date of the prior I-140 petition can still be retained.
7. Would job portability be an option in cases where the non-immigrant worker has a pending I-485 Adjustment of Status application?
If the I-485 application has been pending for 180 days or more, the worker can exercise job portability by taking up a job or being offered in the same or similar occupation with another employer. The underlying labor certification and I-140 will still remain valid upon exercising such portability. The applicant, in such an instance will need to submit a new Form I-485, Supplement J. The non-immigrant worker in this case can also exercise job portability to “self-employment” if he is unable to find any employment.
Disclaimer: Any material provided here is by way of information only and should not be viewed as soliciting or advertising. No action should be taken based on information provided without seeking appropriate legal advice.
With inputs from Manizeh Mistry, Associate Partner at LawQuest.