Nonimmigrant Visa Employee Options Available in the Event of a Layoff
January 23, 2023
As a nonimmigrant visa employee working at a company facing layoffs, it is important to be aware of applicable rules and available visa options in the event your employment ceases due to a lay off. The following options are available to nonimmigrant workers in the event they are laid off.
1. Certain nonimmigrant workers are eligible for a 60-day grace period
In the event of a layoff, U.S. Citizenship & Immigration Services (USCIS) regulations permit a discretionary 60-calendar day grace period for laid off nonimmigrant workers in the following nonimmigrant visa classifications: E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN. Under this grace period provision, these eligible nonimmigrant workers are considered to have maintained status following the end date of their employment for up to 60 consecutive calendar days. It is important to note that if the authorized validity period on your nonimmigrant visa ends before the end date of the 60-day grace period, then this grace period is shortened and will end on the earlier validity date noted on your nonimmigrant visa. This 60-day grace period also extends to the eligible visa holder’s dependents.
2. Portability to a new employer
During the 60-day grace period, a nonimmigrant worker is permitted to change employers. The filing of a change of employer nonimmigrant visa petition during the 60-day grace period permits a nonimmigrant worker to remain in status in the USA beyond the grace period, pending the approval of that petition. An approved change of employer petition filed during this period is considered to maintain the nonimmigrant worker’s status in the United States.
Alternately, if your visa classification or employment situation does not allow for a change in employers during the 60-day period, you may also have the option to file to change your nonimmigrant visa classification status (such as a change from L-1 to TN visa status). It is important to note that this change of employer and change of status petition should be filed using premium processing (when available), as employment authorization for the new position indicated with this change of status would not attach until USCIS approves the petition.
If the nonimmigrant worker has an employment-based I-485 adjustment application that has been pending with USCIS for over 180 days, then they may be eligible to transfer (also referred to as porting) their adjustment case to a new employer, provided the new offered employment is in a same or similar role. In addition, if a nonimmigrant worker has a pending adjustment application, they are generally eligible to remain in the United States and obtain an Employment Authorization Document (EAD) to maintain employment authorization.
3. Changing status
Nonimmigrant workers may also file to change to a new nonimmigrant visa status that does not permit employment authorization, thereby giving up their ability to work temporarily in the U.S., but allowing them to remain in the U.S. in another status. Filing to change to a new nonimmigrant status such as B-2 or F-1 student status during this 60-day grace period will permit the applicant to maintain nonimmigrant status in the USA beyond the 60-day grace period. Please note that such changes of status filings must be non-frivolous, and that while this application is pending with USCIS, the applicant does not accrue unlawful presence.
4. Departing the USA
If an H-1B or O-1 nonimmigrant worker chooses to depart the United States within the 60-day grace period, then their employer is required to cover the reasonable cost of the worker’s return travel to their last country of foreign residence. This requirement is found in the immigration regulations at 8 CFR 214.2(h)(4)(iii)(E) and 8 CFR 214.2(o)(16).
Once abroad, a former H-1B visa holder may seek further U.S. employment and be sponsored under a new H-1B petition by a U.S. employer. Once approved, they can use the H-1B petition approval and either an existing valid visa already in their passport or apply for a new H-1B visa and seek readmission to the United States to work with the new employer. Those seeking another classification for which they may be eligible can complete the petition process abroad and seek readmission to the United States.
5. Other options
There are also other alternate and case-specific, options available to nonimmigrant visa holders subject to layoffs. As an example, some individuals may be eligible to self-petition for permanent residence if they can demonstrate their eligibility for self-petitioning visa categories such as extraordinary ability, a national interest waiver, or an investor visa.
If you are interested in learning more about the self-petition process, or whether any other options are available to you after a layoff, please reach out to a Parker Gallini attorney for more information.
If you are an employer and would like further information about the obligations and impact of a layoff on your foreign national employees, please contact your Parker Gallini immigration attorney.
See our blog post, Ripple Effect of H-1B Layoffs, for more information on the impacts of layoffs on an employer.