Layoffs can be particularly stressful for workers on H-1B visas because their legal status in the United States is tied to their employment. When a job ends, the immigration consequences can be immediate and complex. However, H-1B workers who lose their jobs still have several options to remain in the United States or maintain lawful status while seeking new opportunities. Understanding these options is crucial to making informed decisions during an uncertain time.
The 60-Day Grace Period
One of the most important protections for H-1B workers is the 60-day grace period provided by U.S. Citizenship and Immigration Services (USCIS). When employment ends, most H-1B visa holders have up to 60 days, or until the end of their authorized stay on the I-94 record, whichever comes first, to take action.
During this grace period, individuals can remain in the United States while they search for new employment, change visa status or prepare to depart the country. If a new employer files an H-1B petition during this period, the worker may be able to continue working under the H-1B portability rule once the petition is properly filed, rather than waiting for approval.
Note however, the grace period is not guaranteed in every situation, and workers should act quickly. Consulting an immigration attorney can help ensure that all filings occur within the allowed timeframe.
Transferring the H-1B to a New Employer
The most common option after a layoff is finding a new employer willing to sponsor the H-1B visa. This process is often called an H-1B transfer, although technically it is a new petition filed by a new employer. If the new employer files the petition before the 60-day grace period expires, the worker can typically begin working as soon as the petition is filed with USCIS, thanks to the H-1B portability provision. This allows workers to avoid long employment gaps.
Importantly, the new job must still qualify as a specialty occupation, and the employer must comply with standard H-1B requirements, including submitting a Labor Condition Application (LCA) and meet the prevailing and actual wage requirements imposed by the H-1B visa category.
Changing to Another Visa Status
Some laid-off H-1B workers may choose to change their immigration status instead of immediately finding another H-1B employer. Several options may be available depending on the individual’s background and goals. For example, individuals may apply for a B-1/B-2 visitor visa to extend their stay temporarily. Others may transition to F-1 student status to pursue further education. Entrepreneurs may explore options such as O-1 visas for individuals with extraordinary ability or E-2 investor visas if they qualify through nationality and investment requirements.
Changing status can provide additional time in the United States, but each option has specific eligibility rules and limitations. Careful planning is essential before submitting a change-of-status application.
Starting the Green Card Process
For some H-1B workers, a layoff may prompt them to accelerate plans for permanent residency. If a green card process has already started, particularly if the worker has an approved I-140 immigrant petition, there may be additional flexibility. In certain cases, workers with an approved I-140 may extend their H-1B status beyond the usual six-year limit.
Additionally, if the adjustment of status application has been pending for at least 180 days, job portability provisions may allow a change to a similar occupation without restarting the entire process. Understanding the stage of the green card process is critical in determining what options are available after a layoff.
Leaving the United States and Reentering Later
If none of the above options are feasible within the grace period, leaving the United States may be necessary but note that the $100,000 H-1B fee may apply. While this can be difficult, it does not prevent a worker from returning later. A new employer can still file an H-1B petition for the worker and pay the $100,000 fee without being subject to the H-1B lottery again if the individual was previously counted against the cap. Once the petition is approved, the worker can apply for a visa stamp at a U.S. consulate and reenter the United States.
Although layoffs create uncertainty for H-1B visa holders, several pathways exist to maintain lawful status or return to the United States. The 60-day grace period, H-1B transfers, visa status changes, green card portability and future reentry options all provide potential solutions. Acting quickly and seeking professional guidance can help workers navigate these choices effectively and protect their long-term immigration prospects.
Barbara Wong-Wilson is an attorney at Mission Law & Advocacy, P.C. and SW Law Group P.C. If you have any questions on U.S. immigration matters, please feel free to reach out to wo**@*********ws.com or wo**@****pc.com
