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Options for Nonimmigrant Workers as Widespread Layoffs Continue

In light of the recent wave of layoffs among major U.S. tech companies, it’s important for nonimmigrant visa holders to understand their options for remaining in the U.S. legally after a job loss. Understanding these routes is essential for maintaining lawful status and potentially transitioning to new opportunities.

Nonimmigrant workers should note the provision for a discretionary grace period, allowing certain visa holders such as those on H-1B, L-1, and TN visas (along with their dependents) to maintain status for up to 60 days following termination of employment or until their I-94 expiration, whichever comes first. During this period, nonimmigrant visa holders cannot continue to work, but they retain eligibility to switch employers or change immigration status.

Here are some of the available pathways for nonimmigrant workers seeking to remain legally in the U.S. post-employment termination:

  1. H-1B Portability: This rule enables individuals in H-1B status to start work with a new employer as soon as the employer files a new H-1B petition with USCIS. This is known as filing a “transfer.” If a new employer files for an H-1B “transfer” within the 60-day grace period, the nonimmigrant visa holder can continue residing and working in the U.S.
  2. Change of Status to Another Visa Type Permitting Employment: Within the grace period, eligible nonimmigrant workers can request a change of status to a different visa category that allows work authorization. It’s important to note that the individual cannot work under the new visa classification until the change of status is approved, but the timely filing of the change of status will prevent the accrual of unlawful presence until a decision is issued.
  3. Dependent Status: Eligible nonimmigrant workers may use the 60-day grace period to apply for a change of status to become the dependent of a nonimmigrant spouse (e.g. H-4, L-2). Certain individuals in a dependent nonimmigrant status may be eligible for employment authorization incident to status, including spouses of E-1, E-2, E-3, or L-1 nonimmigrants. Moreover, some H-4 dependents may be eligible for an Employment Authorization Document (EAD) if their H-1B spouse has an approved I-140 immigrant petition.
  4. Change of Status to B-1/B-2 or F-1: Within the 60-day grace period, eligible workers can file for a change of status to B-1/B-2 visitor visa or an F-1 student visa. However, the B-1/B-2 status doesn’t permit work, and F-1 students have very limited work opportunities.
  5. Adjustment of Status: Certain nonimmigrants may be eligible to self-petition an I-140 concurrently with an adjustment of status application under categories such as EB-1A, EB-2 NIW, or EB-5, provided their priority date is current. Those with pending adjustment applications can typically stay in the U.S. and obtain an EAD, though they cannot work until an EAD is issued.

Quick Note: PERM Applications and Approved I-140 Petitions after Layoff

If an employer has submitted a PERM application to the Department of Labor (DOL) and the foreign worker is subsequently laid off, it’s highly likely that the PERM application will be withdrawn. This is because the company no longer has the job position available for that individual’s future employment. The same situation applies if the PERM application has been approved, but the company has not yet filed the I-140 immigrant petition.

If a PERM application and I-140 immigrant petition have been approved and the foreign worker is thereafter laid off, they will not be able to port the job opportunity to a new employer. However, the foreign worker can port the priority date once the new employer has an approved PERM application and files an I-140 immigrant petition on their behalf. Furthermore, if the I-140 petition was approved for at least 180 days, the foreign worker can use that approved I-140 petition from the previous employer to receive 3-year extensions beyond the H-1B 6-year limit with the new employer if a green card is not immediately available. It’s important to emphasize that for eventual adjustment of status, the new employer must initiate the green card process for the foreign worker.

Understanding these options is crucial for nonimmigrant workers who have experienced a layoff by their employer. Reddy Neumann Brown PC, with over two decades of experience, focuses exclusively on U.S. employment-based immigration law and provides comprehensive assistance to both employers and employees in maneuvering through the immigration process efficiently and effectively.

By: Krystal Alanis

Krystal Alanis is a Partner at Reddy Neumann Brown PC with over 13 years of experience practicing U.S. business immigration law. Krystal manages the firm’s PERM Labor Certification Department, where she oversees all EB-2 and EB-3 employment-based green card matters. She also works on a variety of nonimmigrant work visas (e.g. H-1B, TN, L-1). Krystal serves as the American Immigration Lawyers Association Houston Section Co-Chair, has hosted multiple educational webinars regarding a variety of Employment-Based Immigration topics, and has been quoted in Forbes, where she discussed the PERM Labor Certification program and the challenges high-skilled immigrants and employers face in light of the unprecedented delays that have plagued the PERM program for years and in Bloomberg Law, where she provided insight into the effects of tech layoffs on the employment-based green card process for H-1B visa holders. Krystal has also been a speaker at the University of Houston where she discussed the variety of immigration-related options available to F-1 international students beyond graduation.