H-1B Visa Status and Layoffs
During an economic downturn many employees are concerned about their job security, but H-1B workers face even more challenges. Amid waves of layoffs, an H1B employee must prepare for the potential loss of income, lack of unemployment benefits, and the danger of losing their legal status in the US.
Below you will find answers to some of the most frequently asked questions regarding H-1B status and layoff. Please read the entire section as the answers may be related to each other. In addition, since being out of status is a serious matter and may have irreversible consequences later on, you should consult a qualified immigration attorney to make sure you are doing everything right. Each person's case is different and the general guidance below may not apply to your situation.
When does an H1B worker lose status after being laid off?
An H-1B employee will lose his H-1B status the day he stops working. He is no longer in legal H-1B status after leaving his sponsoring employer, whether he quits, is laid off or fired.
A severance package complicates the situation during a layoff, so please read on for more discussions. What is most confusing about H1B and layoff is the so called "grace period" - a short period of time that allows you to depart the US or seek other options - but a grace period doesn't mean you are in legal status. You may still be accruing unlawful stay during a grace period.
What should I do if I know I will be laid off?
If you have been notified that you will be laid off, but your last day of employment is still a few weeks away, you need to look at your options immediately. Some common approaches are:
- Remain in AOS status if you have a pending I-485, and rely on EAD or H-1B for your next job (Read AC21 for more information);
- Find a new job and have the new employer file for H-1B transfer as soon as possible;
- Change status to a dependent such as H4, L2 or F2, if your spouse is in independent nonimmigrant status;
- Change status to another nonimmigrant such as F1 or B2;
- Return to your home country and start a new career.
If your best option is to change status, you should prepare Form I-539, Application To Extend/Change Nonimmigrant Status, as early as possible. Try to file your change of status application before your last day of employment. Some companies leave their employees very little time after announcing a layoff, and in this case you should just file I-539 as soon as you can.
The downside of filing too early is that if you find a new employer shortly after, or your existing employer no longer wishes to let you go, your pending (or approved) change of status application makes the situation somewhat complicated. Since your last approved petition usually determines your nonimmigrant status, you should consult with an attorney to make sure your status and work authorization are not incidentally affected.
How long is the "grace period" after an H-1B employee is laid off?
Technically there is no grace period. An H-1B worker is considered out of status immediately after the employer-employee relationship is terminated. However, USCIS officers often overlook a brief gap between status. This is solely at the discretion of the adjudication officer and is not at all guaranteed.
The length of a "grace period" is therefore highly subjective. According to various unofficial reports, one month, maybe two, is reasonable depending on the circumstances. USCIS often, but not always, makes favorable decisions on change/extension of status petitions filed during such grace period. But as an immigrant, you should not rely on it.
The so-called "10-day grace period" for H-1B is a very confusing concept - read more on the next page.
Continue to page 2: Severance Package, H-1B Revocation, etc.
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