FAQs on H1B Layoffs

For many, the close of each calendar year brings with it holidays and good cheer. For some, however, there looms the possibility of layoffs as employers assess their needs for the coming year. Laid off workers in H1B status are in particularly difficult situations, as their legal status is dependent upon being sponsored by U.S. employers. This naturally presents H1B workers who expect to lose their jobs with a number of questions. A few sample questions are answered here for MurthyDotCom readers.

Question 1. I was laid off a month ago and my company has informed me that it sent a letter to the U.S. Citizenship and Immigration Services (USCIS) requesting revocation of my H1B petition. What happens if I find another H1B employer in the meantime?

The revocation of the H1B petition after employment termination does not prevent the approval of an H1B petition through a new employer. If a person holds H1B status, the (former) employer’s request for revocation of the existing H1B petition will not make the worker subject to the H1B quota. What is potentially affected, however, is the ability to change employers from within the United States. This option generally is dependent upon whether or not the individual is in valid status at the time the new employer files the H1B petition. Since H1B status normally is lost upon termination of employment, not upon the employer’s request for revocation of the H1B petition, in most cases a worker who is suddenly laid off instantly falls out of status.

When a company files an H1B petition requesting a change of employer, the USCIS expects proof of the worker’s valid status as of the time of filing. If this proof is not available, the USCIS may approve petition itself, but can find that the worker is out of status and, therefore, deny extension of status request. The USCIS decision, in these cases, will  direct the individual to depart the United States. In most cases, this out-of-status finding by the USCIS also means that the worker will be required to apply for a new H1B visa from her/his country of origin, in order to reenter the United States in H1B status and begin working for the new employer.

Of course, it always is best for foreign nationals to avoid falling out of status. As explained above, if an H1B worker falls out of status, s/he typically must leave the United States before resuming H1B employment. However, in some cases, there may be available options that negate the need to travel, especially if the foreign national takes steps to resolve the matter quickly. In other situations, travel is unavoidable, but it may be possible to omit the need to apply for a new visa “stamp” at the consulate. Such a determination can only be made on a case-by-case basis, however, so those facing this type of dilemma should consult with a qualified, experienced immigration attorney.

Question 2. I am in H1B status and am about to be laid off. Can I apply for some other status?

A person facing a layoff may be able to apply to change status in certain circumstances. A number of different options may be available, depending upon the situation. The simplest option, if available, is as a dependent of one’s spouse, if one has a spouse who holds an independent nonimmigrant status, such as H1B or L-1 status. This may permit a change to H-4 or L-2 status. The L-2 is particularly beneficial, since it allows one to request employment authorization.

Some individuals choose to apply for student status (F-1) in order to return to school. Because of the time usually required to file an F-1 application, this option is likely available to those with ample warning of a layoff, or who previously initiated the school application process.

While it is technically possible to request a change of status to B-1/B-2 visitor, the USCIS usually does not approve such applications in these types of situations. That being said, a B-1/B-2 change-of-status request may be a viable solution in certain circumstances. This option is most appropriate for individuals who need additional time to wrap up personal matters before leaving the U.S. In most cases, though, H1B workers who face layoff should start by exploring other options.

Similar to the issues raised above regarding a change of employer request, a change of status typically must be filed while the foreign national is still in a valid status. Otherwise, it may be necessary to depart the United States, obtain a new visa, and reenter in the appropriate status. But, again, before finalizing any such travel plans, one is well advised to consult with an attorney to discuss available options.

Question 3. Prior to being laid off, I changed status to F-1. If I find a new employer later, can I revert to H1B status?

Generally, it is possible to return to H1B from an alternative nonimmigrant status. Changing to any other interim status, such as F-1 or H-4, does not make one subject to the H1B cap again. If a new employer is found, however, the individual would be able to resume working once an H1B change-of-status request is approved.

It can be a bit complex and confusing if there are multiple requests to change status, back and forth, pending at the same time. Generally, if possible, it is advisable to avoid having multiple, conflicting filings pending simultaneously with the USCIS. Certain situations, however, make these types of concurrent filings unavoidable. In this event, coordination of filings should be discussed with a qualified attorney.

Conclusion

Layoffs tend to be stressful and cause difficulties, no matter one’s situation. For H1B workers, however, layoffs present a unique set of challenges. The Murthy Law Firm is experienced in helping impacted foreign nationals navigate this immigration quagmire. Anyone seeking guidance and solutions is encouraged to schedule a consultation.

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.