H-1B and Lay-Offs, Your Options? (By an Immigration Lawyer)
Recessions and lay-offs are unavoidable parts of the economic cycle. However, lay-offs are more difficult for immigrant workers to deal with as they have to not only go through a major employment change, but also find a way to maintain their immigration status. We discuss below what possible options may be available to individuals in this unfortunate circumstance.
First, in the event an H-1B employee is laid off and they have not already used their grace period during the same validity period, then they will have a 60-day grace period upon the termination of their employment. The same grace period is available to E-1, E-2, E-3, H-1B1, L-1, O-1, and TN nonimmigrant workers. During these 60 days, the nonimmigrant and their dependents can legally stay in the US. Please note that if their I-94 ends prior to the 60 days, then the end of their grace period will coincide with the end date of their I-94.
New Employment or Other Immigration Status
Second, before the termination date or during the 60-day grace period, they can secure new employment and have an H-1B petition filed on their behalf. They can also file an application to change their status to another work authorized status, such as TN (if Canadian), E-3 (if Australian), etc. If the nonimmigrant employee is married and their spouse has an independent status such as H-1B, L-1, E-2, F-1, etc., then they can change to a corresponding dependent status of their spouse’s visa type. If the nonimmigrant employee wants to study, they can file an application to change to F-1 status. If the nonimmigrant employee needs more time to make arrangements before departing the US, then they can file an I-539 application to change their status to a B-2 visitor. This will allow them to stay up to an additional 6 months.
Pending I-485 application
Third, if the nonimmigrant worker is the beneficiary of an approved I-140 petition and has filed an I-485 application, which has been pending for more than 6 months, then they can work for another employer and still maintain their green card case as long as the new job is the same or similar to the sponsored job position. In the event they have filed an I-485 application, they are also authorized to stay in the US regardless of having a nonimmigrant status or not.
For H-1B employees who have been laid off, the most logical option may be to find new H-1B employment, but due to time constraints or difficulty finding another employer willing to sponsor them, they may have to explore some of these other options. Every situation is different, but understanding what options are available to you may be valuable in maintaining or extending your stay in the US.
Copyright. Judy J. Chang, Esq. All Rights Reserved. 11/10/2022 The information contained in article is provided for general information only and should not serve as a substitute for legal advice.
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