H1B Layoff:

Introduction

H1B layoff means disruption of plans for foreign nationals working in the U.S. on an H1B visa, and such uncertainty in an alien country can be particularly worrisome.

This problem is further compounded by undefined terms and often contradictory interpretations of the immigration laws.

Here we present suggestions on what to do if you are the casualty of an H1B layoff, and the timely actions you must take to avoid complications.

I. H1B Layoff – What Does The Law Say?

The amount of time that an H1B worker may stay in the U.S. after an H1B lay-off or termination is not defined in the law or the regulations.

A. 30 Days? 60 Days?

Various USCIS officials over the years have opined an H1B worker must submit an application for an H1B employer change 30 days or 60 days of being laid off.

However, these statements are merely opinions and do not have the force of law.

B. 10 Days?

Some fear that a laid off H1B worker has only ten days to either apply for a new job or leave the U.S. This is absolutely untrue.

The confusion regarding the ‘ten day’ rule probably stems from the regulations at 8 C.F.R. §214.2(h)(13)(I)(A), which governs the time period to be granted to a person entering the U.S. on H1B. It states:

“A beneficiary shall be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. The beneficiary may not work except during the validity period of the petition.”

This regulation does not apply to those who have been laid off on H1B and are changing their employers or their nonimmigrant status.

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My Case Scenario
Abhinav Nalluri

Question: I was laid off a month ago and my company has informed me that they sent USCIS a letter revoking my H1B petition. What happens if I find another H1B employer in the meantime?

Answer: USCIS generally takes several months to process H1B revocation notices, which means that, as a practical matter, the revocation of the H1B petition may not appear in the USCIS system for several months. However, this is merely a general statement and not official USCIS policy. Any laid-off worker should therefore make efforts to find another job as soon as possible and have the new employer sponsor the H1B employee for a new change of employer H1B petition at the earliest opportunity. You may encounter problems without the availability of current pay stubs as proof of continuing, valid H1B status. Because of the circumstances, you may not be able to obtain an H1B extension of stay and may be required to travel abroad to obtain a new H1B visa or, at the very least, obtain a new I-94 card with H1B status upon re-entry to the U.S.

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II. Victim of An H1B Lay-off: What Do You Do Now?

Here are 5 suggestions on what to do if you are the casualty of an H1B layoff.

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A. Don’t Panic

If you are in H1B status and you get laid off – don’t panic.

You have a visa that is still valid and you are within your period of authorized stay. So at this point you are NOT accruing unlawful presence, even though you fall out of status when you are no longer working for your H1B sponsor.

The date on your I-94 rules the question of “unlawful presence” for purposes of the 3 and 10 year bars. If you still have time on your I-94 then you are not accruing unlawful presence until that date has passed.

DID YOU KNOW?

“Unlawful presence” is different from “out of status.”

It is only in certain cases of “unlawful presence” that you will not be allowed back into the U.S. for some period. Specifically,

1.180 days to 365 days of unlawful presence means that you will be barred from the U.S. for three years should you leave and attempt to return.

2.Unlawful presence of over a year results in a 10 year bar to reentry should you leave the United States.

B. Search For Job

You should begin your job search as soon as the H1B layoff occurs. As you know, your job search will become your full time job until you find a new employer.

IMPORTANT
Once you obtain a new offer of employment, you should have the new employer submit an application for H1B employer change as soon as possible.

C. Maintain Legal Status

You must show a good faith effort to stay in legal status in the country. You can do this in a couple of ways.

1. If your former employer revoked your H1B at the time of H1B lay-off, you need to file for a change of status to B-1/B-2 immediately. You will need a copy of your itinerary showing intent to leave the U.S. at the end of the requested B-1/B-2 status. You will also need financial proof, usually in the form of a bank statement, showing that you have enough money to stay in the U.S.
2. If your H1B status was not revoked when you were laid off, you can find a new employer and file a change of employer petition.
3. If your H1B status was not revoked when you were laid off and if you cannot find a new position and get a change of employer petition filed within thirty (30) days, you should apply for a change of status to B-1/B-2 visitor status.

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D. Apply For H1B Employer Change

Once you obtain a new offer of employment, you should have the new employer submit an application for H1B employer change as soon as possible.

When the USCIS makes their decision on the new petition they have three choices:

1.The H1B job change request can be approved.

2.The H1B job change request can be denied, in which case you will have to depart from the U.S.

REMEMBER
Under AC-21, a worker may begin employment with the new employer as soon as the H1B transfer petition is submitted to the USCIS if they are still in H1B status.

If you have changed status to B-1/B-2 you will have to wait for the H1B change of status petition to be approved before you can begin work.

If the H1B visa for the previous employer has not expired, and there is an issue with the H1B employer change petition, you may be able to simply travel outside the U.S. and return using this original H1B visa and your new original H1B Notice of Approval (Form I-797).

E. Work Using EAD

If you have an EAD (Employment Authorization Document), you may immediately start working for a new employer using that EAD.

Depending on the circumstances you may need to have your new employer submit a new labor certification and visa petition on your behalf.

DID YOU KNOW?
The EAD is not employer specific; therefore losing your job does not invalidate it. Only the denial or termination of the application for adjustment of status does this.

III. H1B Layoff And Beneficiary of An Approved Immigrant Visa Petition

If you also happen to be a beneficiary of an approved employment based immigrant visa petition, depending on where you are in the Green Card process, one of two things can happen:

A. AOS Pending For Over 180 Days

If the application of adjustment of status had been pending for over 180 days prior to the H1B lay-off, you may change jobs without jeopardizing your green card application, as long as the new job is in the same or a similar occupation.

B. AOS Not Pending For Over 180 Days

If you had not filed for adjustment of status, or if it has been less than 180 days since filing for adjustment of status, you may have to have your new employer submit a new labor certification and a new EB visa petition on your behalf. In such cases, you may be able to use your original priority date.

In some instances (i.e., where the employer has to file a new labor certification and immigrant visa petition, and the adjustment of status application may be denied before the new petition can be approved) it may be necessary for you to have your new employer file a new H1B petition for you even though you are currently working using an EAD.

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Conclusion

During the times of uncertain economy, H1B layoffs are a reality more than ever. If you get laid off and are H1B out of status, don’t panic. Make efforts to find another job as soon as possible, while following the above guidelines to maintain your legal status in the country. Timely action, based on a careful review of your specific situation, is essential to avoid complications.

If you are the casualty of an H1B layoff, or have questions about the steps you should take to maintain status, contact our experienced immigration attorneys immediately for a FREE H1B Consultation.

We’ll analyze your specific situation and recommend the most effective strategy based on our attorneys’ near 100% success rates.

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