For many, the close of each calendar year brings with it holidays and good cheer. For some, however, there looms the possibility of layoffs as employers assess their needs for the coming year. This is now true in the tech industry and its many H1B workers, as Amazon, Twitter, and Meta, among others, are in the process of laying off a significant number of employees, including many who are in H1B status. These FAQs are designed to provide general information regarding many of the most common issues that arise following layoffs of H1B workers.
In most situations, the USCIS will not grant a status request if the beneficiary is not in valid status at the time of filing. To be clear, this does not mean the USCIS will deny the petition. Rather, if the petition is otherwise approvable (e.g., the position requires at least a bachelor’s degree in a particular field, the beneficiary meets the education requirements for the position, etc) the USCIS normally still will approve the petition, but only for consular processing. In such a case, the approval notice will not include an I-94, and the individual will need to leave the U.S. and return with the approval notice and a valid H1B visa “stamp.”
Note that, in most situations, the USCIS can exercise discretion to grant a status request filed for someone who is not in status at the time of filing. The MurthyDotCom NewsBrief, Filing a Nunc Pro Tunc Request to Reinstate Status in the U.S. (01.Feb.2018) explains the basic requirements for the USCIS to grant a nunc pro tunc request and approve a late filed request to change or extend status. Given that this is a discretionary benefit, however, the beneficiary should understand that the USCIS could deny the request.
There is an “alphabet soup” of nonimmigrant visa options available under U.S. immigration law. So, the specific options available may vary significantly based on numerous factors. However, there are some more common nonimmigrant visa categories to consider.
In some cases, the laid off worker may be able to apply for a change of status to become a dependent of their spouse. For example, if the spouse is in H1B or L-1 status, the laid off worker could apply for a change of status to H-4 or L-2.
Another option may be to enroll in a qualifying school and apply for a change to F-1 status (or M-1, for those interested in a vocational or other nonacademic program). During the 60-day grace period, it may be possible for the individual to gather the required documents, such as the I-20 form issued by the school. As with the other visa options, as long as the application to change status is filed during the grace period, the applicant normally is permitted to remain in the U.S. while the application is pending.
While it is technically possible to request a change of status from H1B to B-1/B-2 visitor, the USCIS usually is reluctant to approve such applications. Still, if the person needs additional time to wrap up personal matters, applying for a change to B-1/B-2 may be a reasonable option. But, if the goal is to remain longer in order to find a new job in the U.S., the B-1/B-2 may not be a suitable option.
Once an individual has been counted against the H1B cap, applying for a change of status or departing the U.S. would not make the person subject to the H1B lottery again. So, assuming the foreign worker has not used the full six years of H1B time (or is eligible to extend beyond six years), changing status or leaving the U.S. should not impact an employer’s ability to file an H1B petition for that worker in the future.
If a new job is found before the end of the grace period, the new employer could file an H1B change of employer petition and the beneficiary may commence employment immediately. At that point, the individual likely should withdraw the pending H-4 change of status application.
If the grace period has passed before the H1B change of employer petition is filed, however, one cannot start working based on the filing of the H1B petition. Further, it may be tough to get the case approved with an I-94. Once the grace period has passed, the beneficiary is no longer considered to be in valid status, but instead is in a period of authorized stay based on the pending change of status application. As mentioned above, the USCIS can exercise discretion and grant a status request even when the beneficiary is not in valid status at the time of filing. But, since this is a discretionary benefit, it may be necessary to get the petition approved for consular notification, and then depart the U.S. and return with the approved petition and a valid H1B visa.
The regulation states that the grace period starts upon the “cessation of employment.” Generally, the USCIC has interpreted this to mean the last day the person performs work for the employer. While there are situations in which an H1B worker may be granted unpaid leave and still maintain valid H1B status, this generally is allowed only if it is due to conditions unrelated to the employment (e.g., requesting time off to take care of a sick relative; being temporarily unable to work due to a car accident). The start of the grace period typically cannot be delayed by being granted a voluntary leave (which isn’t truly voluntary).
As indicated above, the safest approach likely would be to assume the grace period starts following the last day of performing work. One could argue that, where the employer is essentially treating the individual as an employee, paying the salary, providing benefits, etc, this serves to delay the start of the grace period. However, this would be risky, as the USCIS may reject such an argument.
Layoffs tend to be stressful and cause difficulties, no matter one’s situation. For H1B workers, however, layoffs present a unique set of challenges. For foreign nationals facing a layoff, it is important to understand how to proceed in order to avoid long-term immigration problems.
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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.