Non-Immigrant Work Visa Holders Facing Layoffs Have Options (H-1B, F-1 OPT, STEM, L-1, PERM, I-140)
by Tiffany Wong on November 23, 2022.
(H-1B, F-1 OPT, STEM, L-1, PERM, I-140, and more!)
The information below is a general overview and should not be regarded as legal advice. Each and every immigration situation is unique and so are the paths available. Contact A&A today to schedule a free, no-strings-attached, 15 minute consultation to brainstorm the best options for you.
As we near the end of 2022, big tech players seem to all be facing huge workforce changes. Meta recently announced the layoff of 11,000 workers which comprised almost 13% of their workforce. Elon Musk’s acquisition of Twitter has resulted in the layoff of almost 4,000 workers with more sure to come. Amazon workers have also been impacted with a reported 10,000 being let go. Even Zillow, the online real estate marketplace, laid off almost 25% of its workforce last year.
Layoffs in the tech industry heavily impact those who are in the US on employment-based visas. According to the American Immigration Council, in 2019, over 23% of the American STEM workforce was comprised of foreign-born workers.
Keep reading to see what options you may have if you are facing a layoff as an employment-based visa holder. While this article generally focuses on H-1B workers facing layoffs, there are almost always a variety of options available for other types of visa holders as well.
If I’m laid off while on H-1B status, do I lose my visa status?
When H-1B holders are laid off, they lose status immediately. While this may sound alarming, an important distinction to remember is that there is a difference between not having status, and accruing unlawful presence.
Unlawful presence in the U.S. of over 180 days will result in a 3-year bar from re-entering, and unlawful presence of over a year will result in a 10-year bar. When you lose your status as an H-1B holder, you have a 60-day grace period. (See below). For those 60 days, while you may not have status, you won’t accrue any unlawful presence. You will only begin to accrue unlawful presence if you stay past those 60 days.
Do I have to leave immediately?
While you may not have status anymore, you are not required to depart the US immediately. H-1B holders have a 60-day grace period that allows you to stay in the U.S, as long as it is within the validity of your most recent I-94. The 60-day grace period begins counting down from the last day of your final payroll.
If you are an F-1 visa holder on OPT, you have a longer grace period of 90 days. Please note that any prior unemployed days will be aggregated into the total 90 days. For example, if you did not find an employer for 10 days before your most recent job, you will now have 80 days left.
There are also other variations of grace periods for other visas and situations.
What are my options if I want to stay in the US?
There are a variety of options available for those that want to stay in the US. The paths that are available will always depend on your unique and individual circumstances.
We will briefly explore some of these options and whether you are able to work if you choose to pursue them.
● (1) Transfer H-1B to Another Employer
H-1B holders may transfer their H-1B status to another employer if they are able to find one that is willing to sponsor them. When transferring your H-1B, the new employer must have the I-129 Petition filed within the 60-day grace period.
Can I work?
You may work while the transfer petition is pending as long as you have received the I-797 Receipt Notice. Receipt Notices are typically issued and received within two weeks from the filing date.
● (2) H-4 or Other Spousal Visa
If you have a spouse that currently has H-1B status, you are able to file for H-4 status as their spouse. H-4 visas are the spousal counterpart to H-1B. There are other spousal visa options available for other types of visas as well. Contact us to find out more.
Can I work?
Generally, H-4 visa holders are not permitted to work. However, if your spouse has a pending PERM labor certification application or I-140 petition, you may be able to apply for an Employment Authorization Card (EAD).
● (3) F-1 Student Visa
For those that are considering going back to school, there is always an option to transfer to F-1 student visa status as well. There are a few nuances when it comes to whether or not you will need to depart the US before studying. Please contact us for more information.
Can I work?
Currently enrolled F-1 students generally cannot work, but you may apply for Curricular Practical Training (CPT) in your first semester if you are attending school at the graduate level.
CPT allows you to work either full or part time. This requires approval from the school’s designated school official (DSO) as well as an agreement letter from the prospective employer
● (4) Self Employment
There are also a few visas available for self-employment if that is a viable option for you. You may transfer your H-1B, or other type of employment, to your own business. There is also an option to apply for investor related employment-based visas such as the E-2 or EB-5 petitions. This option will vary depending on the type of credentials and businesses that you may hold.
Can I work?
If you transfer your H-1B to your own company, you may also work as soon as you receive the I-797 Receipt Notice. If you choose to go with an investor option such as the E-2 or EB-5, you generally may not work while the application is pending.
● (5) Asylum
Asylum may also be an option for those that have suffered, or fear that they will suffer, persecution due to race, religion, nationality, membership in a particular social group, or political opinion.
Can I work?
Asylum applicants are generally eligible to apply for an Employment Authorization Card (EAD) once their asylum application has been pending for 150 days.
You are not eligible to receive the EAD card for another 30 days, bringing the total to 180 days - or 6 months.
Again, please remember that this is only a broad and general overview of what may be available. Each immigration situation can be as unique as you are! Your individual circumstances may not fit the above options, or they may allow us to find a completely different path. Contact us for a free consultation to discuss the best options for you.
Yen-Yi Anderson, Managing Partner of Anderson & Associates, founded the law firm in January 2014. Yen-Yi Anderson focuses her practice on excellence in business immigration, commercial law, and civil litigation.