Obtaining H-1B visa status in the U.S. doesn’t guarantee full job security. There could be a chance when you get laid off from your employment.
What should be done in that circumstance that’s outside your control? Don’t worry! Here’s a medicine that will cure your wound, and lift you from the last-moment crisis.
This guide is prepared to talk through the basic steps to be taken once you get laid off from an H-1B job. This includes detailed notes on the grace period, another job hunt, attorney consultation, and more.
Grace Period when Laid Off From H-1B Visa Job
The U.S. immigration laws and regulations allow a foreign national to gain H-1B visa status after following a crucial process. If in case, you no longer hold the H-1B visa lawful status, the same regulation grants you up to 60 days to get your legal status in order. There are considerable steps that can lead you to maintain lawful status in the U.S., as discussed below.
If the USCIS discovers your “unlawful presence” in the country, you’ll have to face legal repercussions, particularly post six months. The repercussions can be stressful as you’ll be compelled to serve terms of imprisonment- 3 years bar, if you leave after ensuring unlawful presence for more than 180 days in the U.S.; 10 years bar, if you ensure an unlawful presence for more than a year; lifelong imprisonment if you tend to reenter the U.S. without admission after accruing more than one year of unlawful presence.
However, some confuse this 60-day grace period with a 10-day grace period as mentioned in 8 C.F.R. §214.2(h)(13)(I)(A) which 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.”
Note: This regulation isn’t applied to those being laid off on H-1B and are changing their employers or nonimmigration status to maintain their legal presence in the U.S.
As per the USCIS guidelines, the 60-day window is counted primarily from your last day of service at the workspace instead of the last time you receive payment. While determining lawful or unlawful presence in the U.S., USCIS considers either your 60-day grace period or the I-94 expiration date, whichever comes first.
If you feel like consulting an immigration attorney to comprehend the process well, contact us now.
What Are My Options if I Lost My Job?
Here’s all that can be explored if you’re the casualty of an H-1B layoff:
DON’T PANIC
Certainly, if you lose the job, it’s a great matter of concern. But stressing over it cannot resolve the issue, rather it’ll multiply. Don’t forget that you’ve lost just a job, not the opportunity to re-ascertain your legal presence in the U.S. as an employee. You still have the time to claim employment within the 60-day grace period or before your I-94 date expires.
Remember, all you need to do is put in effort and diligently look for more and more prospects until you find one.
FIND NEW EMPLOYMENT WITHIN 60 DAYS
Laid employee, at first, jumps into searching for a new sponsoring employer to reestablish their legal presence with a novel H-1B visa status. It’s always advisable that the employee look for (at least two weeks prior) another employment before the expiration of your grace period or I-94 (whichever ends first).
Portability rules ensure that the employees remain in the U.S. after the 60-day grace period or I-94 date expires, provided they find new employment. The new employer, if found, must go through a process that will “port” or transfer your existing H-1B visa to your new employer. That’s the magic of the “portability rule” where you’re not pushed towards applying for a new H-1B, but retain the same visa but under a new sponsoring employer. The new employer must:
File a new LCA (Labor Condition Application) with the U.S. Department of Labor on the employee’s behalf.
File Form I-129, Petition for a Nonimmigrant Worker with USCIS after the certification of LCA.
Acknowledge the transferred or port H-1B visa of the employee after the approval of the petition by USCIS.
Note: The LCA must be approved prior to the expiration of the grace period to ensure complications-free status. Also, it’s always at the discretion of the USCIS to certify and approve the new employer’s petition and extend your work visa status in the United States.
CHANGE TO DEPENDENT H-4 STATUS IF YOU HAVE AN H-1B SPOUSE OR SPOUSE WITH A GREEN CARD
Another feasible option is to change your status to H-4 status if you’ve an H-1B spouse. Ensure that you submit the change of status application at the soonest possible within the 60-day grace period or before your I-94 date expires. Your spouse’s lawful H-1B status will provide you an extra edge as you’ll get ample time to apply for work authorization as an H-4 visa holder.
In fact, if your spouse is a U.S. citizen or a green card holder then half of your tension is gone because you can easily apply for an adjustment of status and get a marriage-based green card, even though you’ve fallen out of status or stay in the U.S. after the expiration of 60-day window or date of I-94. You’ll be considered as an “immediate relative” of the U.S. citizen by USCIS and hence, you can file Form I-485, Adjustment of Status “concurrently” with Form I-130, Petition for Alien Relative.
CHANGE TO IR-5 STATUS IF YOU’RE THE PARENT OF A U.S. CITIZEN
If your child is 21 years of age or above and a U.S. citizen, you become eligible to apply for a green card through the IR-5 visa process.
Just like spouses, USCIS considers parents as “immediate relatives” of the U.S. citizen and hence, you can concurrently file these types of applications.
APPLY FOR A DIFFERENT VISA TYPE
The first option is to switch your current work visa status to B-1/B-2 tourist visa status and earn more time (six months) to look for job prospects in the U.S. As per USCIS guidelines, a B-1/B-2 visa holder can look for a sponsoring employer and sit for an interview for the same with no barrier. You must file Form I-539, Application to Extend/Change Nonimmigration Status with USCIS and it’s always at the discretion of USCIS to either approve or deny your visa transfer request. Upon denial, you’ll get 30 days to leave the U.S.
The second option is to switch to an F, M, or J student visa and develop a new skill or pursue a career in a different field. To be eligible for a student visa, you must apply for and be welcomed into an accredited academic or exchange program and receive Form I-20 (for F or M visa) or DS-2019 (for J visa)
The third option can be availed by only professionals who possess “extraordinary skill and ability” and thus can go for an O-1 visa. It’s a typical employment visa granted to those at the top of their field. No LCA is to be filed with the U.S. DOL and no one is required to undergo a lottery process like the H-1B visa. All you need to do is fulfill the strict eligibility criteria and own the O-1 visa.
The fourth option can be availed by only Mexican and Canadian nationals who can work in the U.S. for three years (renewal process is included) after switching to a TN or Trade NAFTA visa. The only cons it has is that it’s a “nonimmigrant” visa and you cannot become a U.S. permanent resident.
APPLY FOR E-1/E-2 TREATY TRADER VISA OR EB-5 INVESTOR IMMIGRANT VISA
In the case of an E-1 or E-2 treaty trader visa, your home country must have a bilateral trade and investment agreement with the United States. If so, you become eligible to apply for long-term employment in the U.S. All you’re required to do is to file Form I-129, Petition for a Nonimmigrant Worker with the USCIS. After the approval of your petition by USCIS, you can switch your legal status to an E-1 or E-2 treaty trader visa.
If you’ve a minimum of $800,000 to invest in a U.S. enterprise, you can do so after filing for an EB-5 investor immigrant visa along with filing a business plan. Through the EB-5 program, you can file for Adjustment of Status and get your work authorization while your application for a green card is still pending. It’s to be noted that the complete process involves a minimum of three years right from the beginning till the approval of your green card. You can’t work but can reside in the U.S. until you receive work authorization from USCIS.
LEAVE THE U.S.
If the above-mentioned visa types aren’t in your favor, then you must choose to leave the U.S. to avoid legal repercussions. It’s rare and hardly chosen but some employee may end up choosing the option of leaving the U.S. after the end of their employment period. In this case, you must discuss travel and relocation expenditure-related issues with your company. The employer is supposed to pay for a flight to your home country.
Conclusion
You must note that there are oceanic ways to deal with lay-off issues that only an experienced immigration attorney can guide you through. Some countries have specific immigration pathways and to know all those, you’ll need expert help. SO WHY DELAY?! Call us now and consult with our professional attorney at http://www.h1bvisajobs.com.
Frequently Asked Questions
Filed H4 within 60 days – Valid I-94 till 2021 – Can I file an H1b transfer with COS after the 60-day grace period?
No, you can’t file an H1b transfer with COS after the 60-day grace period. If you do so, USCIS will send you an RFE or Request for Evidence to prove your lawful presence in the U.S. while maintaining H-1B status. As you’re in no state to prove your legal status as your payroll isn’t running.
Can I withdraw the pending H4 COS after applying for the H1B transfer with an extension after the 60-day grace period?
You surely have the right to file applications and even withdraw them too. That’s not an issue. The problem lies in ensuring your legal maintenance of H-1B status as USCIS will ask you to prove. Somehow, if you dodge USCIS, and get its approval, you can’t escape U.S. embassy authorities during your interview as they issue Form 221g to revisit your previous status maintenance.
My I-94 is still valid after the H1B layoff? Isn’t my status legal in the USA?
Once you get laid off from H-1B visa status, there are two ways to determine your legal time in the U.S. One is the 60-day grace period and the other one is the expiration of the I-94 date. Whichever comes first, guarantees your legal status in the U.S.