I’m on an H-1B visa and I just got notice that I’ll be laid off. What are my options?
If you’re on an H-1B visa and face a layoff, it’s a stressful and uncertain time. However, there are several options to help you stay in the United States. Here’s a brief guide if you find yourself in this situation.
Understanding the Grace Period
The United States offers a 60-day grace period to H-1B visa holders whose employment has ended. This means you may have up to 60 days from your last day of employment to act. You have several options to consider:
Find a New Job with H-1B Sponsorship
• This is the most straightforward way to maintain your H-1B status. If you secure a new job, your new employer can file an H-1B transfer petition for you.
• As long as this petition is submitted within the 60-day grace period, you can start working for the new employer once the petition is filed (you don’t have to wait for approval and you’re not subject to the H-1B cap again if you transfer).
Change to Another Visa Category
If finding a new job within the grace period isn’t possible, you may be able to change your status to another nonimmigrant visa category. Here are a few options:
• B-2 Tourist Visa:
This allows you to remain in the U.S. as a tourist for up to six months. You’ll need to file Form I-539 (Application to Extend/Change Nonimmigrant Status) before the grace period expires. While you won’t be permitted to work, it buys you more time to prepare to leave the country or look for a new job (if you secure a new job that satisfies the H-1B requirements, you may switch back to H-1B status.)
• F-1 Student Visa
If you wish to pursue further studies, enrolling in a U.S. educational institution is an option. You’ll need to be accepted into a program and apply for a change of status to F-1 before the end of the grace period.
• Dependent Visa
If your spouse holds a valid nonimmigrant visa or has an approved I-140 petition, you may be eligible to switch to a dependent visa status, such as H-4 or L-2.
Applying for a Cap-Exempt H-1B Position
Cap-exempt employers, such as universities, nonprofit organizations affiliated with universities, and government research institutions, are not subject to the H-1B annual cap. This means you could transfer to such an employer even if you have been laid off or missed the regular H-1B application window. Please contact an H-1B cap exempt employer or an immigration attorney for guidance on this.
Consider Entrepreneurship
If you are interested in setting up a company in the U.S., you may explore self-employment options by pursuing other visa categories such as:
• International Entrepreneur (IE) Parole Program
This allows foreign national entrepreneurs to operate a U.S. business that has potential for rapid growth and job creation. If you’ve already established a start-up, you might be eligible.
• E-2 Treaty Investor Visa
If you have the means to make a significant investment in a business in the U.S. and are a national of a country with an E-2 treaty, this option might be viable.
Departure from the U.S.
If none of the options above work out, you might need to leave the United States. This doesn’t mean you can’t return in the future. You could potentially come back on a different visa type or even reapply for an H-1B visa based on employment with a new U.S. company, without undergoing the H-1B cap lottery again. It’s important to ensure that you leave the U.S. within the grace period to avoid complications with future visa applications.
Tips for a Smooth Transition
• Keep Legal Documentation: Maintain all your immigration paperwork, including H-1B approval notices, pay stubs and employment records.
• Consult an Immigration Attorney: Immigration laws can be complex, and the best course of action can vary based on your unique circumstances. An immigration attorney can help you make informed decisions.
Final Thoughts
Losing your job on an H-1B visa is challenging, but you have several pathways to consider. Whether it’s finding a new employer, changing your visa status or exploring entrepreneurship, there’s hope for staying in the U.S. Being proactive and informed is key to navigating this transitional period successfully.
Barbara Wong is an attorney at Mission Law & Advocacy, P.C. and SW Law Group P.C. We provide free monthly legal clinics. If interested, please feel free to reach out to [email protected]
