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Layoffs or Reductions in Force

Layoffs or Reductions in Force

The United States Citizenship & Immigration Services (USCIS) regulations do not squarely address the effect of a layoff on nonimmigrant visa employment and immigration status.  In the absence of explicit USCIS regulations, there are no clear or easy answers to most of these questions.  The responses below are based on applicable case law, USCIS memos and letters providing guidance on its position on this issue, and on USCIS public statements at immigration law conferences.  There will, in almost every case, be some uncertainty about how the USCIS will respond to a particular case and some risk that its response will not be favorable. That said, here are some questions and answers designed to provide a general overview.

These materials are provided solely for informational purposes and are not legal advice. Transmission of these materials is not intended to create, and receipt does not constitute, an attorney-client relationship. Readers should not act upon the information contained in these FAQs without first seeking advice from a qualified attorney.


My employer just told me that I am to be laid off.  What happens to my H-1B nonimmigrant visa status?

The current position of the USCIS is that, when your employment with your present employer ends, your H-1B status also ends.  The consequences of this termination of H status may differ in each case as explained below. 


I heard that an H-1B worker has 10 days to leave the United States or file a new application with the USCIS after being laid off.  Is this true?

The “10-day” rule is really a regulation that applies only to individuals at the end of the six-year maximum stay for H-1B status.  It does not apply to the layoff situation.  There is no regulation that states how long an H-1B worker may remain in the United States after the employment relationship has ended.


Now that I know that I am to be laid off, what can I do?

If you wish to seek other employment options and possibly remain in the United States as a nonimmigrant, you can approach your employer to discuss your last date of employment. You may also ask whether your employer is willing or able to work with you to structure your departure in a way that may help you maintain your immigration status.

During the period before your last date of employment, you could look for a new employer who will sponsor you for H-1B employment.  If you have held H status, you may be eligible to start work upon the filing of a new H-1B petition, rather than upon its approval.

Most employers will have some policy about notifying the USCIS of the change in H employment and withdrawing the underlying Labor Condition Application (LCA).  Although the regulations are silent as to timing, employer notification and withdrawal of the H petition and accompanying LCA is required. You should find out when and if the employer plans to take these steps, as these actions may affect your immigration status.

You always have the option of leaving the United States to return to your country of nationality.  Based on the USCIS opinion that your status ends when your employment ends, to avoid any failure to maintain status you may decide to leave the United States no later than your last date of employment.


What can I do if I have already ended my employment and I do not have a new employer or if I am unable to find a new employer before my last date of employment?

There are several options available to you, depending on your particular circumstances:

As a matter of practice, USCIS frequently will allow a person to extend H status with a new employer even if there has been a small gap of employment of generally 30 days or less. If you are able to find new employment within that period, you may still be able to file a new employer extension-of-H-status petition. You may not have to leave the United States to wait for the USCIS to decide the petition (which can take up to 6 months).  When the gap in employment extends beyond 30 days, it becomes less likely that the USCIS would approve your extension of H status for a new employer.  You might then have to leave the U.S. at some point in the process.  The USCIS uses its discretion to decide each case based on the particular circumstances.

The most cautious approach is to file a petition with the USCIS to change your status from H-1B to visitor (B-1/B-2) status as soon as possible before or after the last date of employment.  Your application would explain that you have been laid off and need time to finalize your affairs. There are other eligibility requirements for, and potential consequences from, filing such an application which will depend on your particular circumstances and which you would want to discuss with your own immigration lawyer before filing the petition.

You could return to school full time and file a petition to change your status from H-1B to F-1. 

If your spouse holds H-1B status you could file to change your status from H-1B to H-4 dependent status. This status does not give you work authorization, but if you receive a job offer from another employer, you could change your status back from H-4 to H-1B.  

If you have filed for a change of status from H-1B to another nonimmigrant status, the USCIS may not have decided your change of status application before you find a new H employer and are ready to file the new H-1B petition. In that case, when your new H-1B employer files its petition, you may need to notify USCIS that you no longer seek a change of status and demonstrate to the USCIS that you filed the change of status application in good faith.  


If none of these nonimmigrant visa options work for me, when would I have to leave the United States if I am unable to find a new employer?  

The USCIS takes the position that you fail to maintain your lawful immigration status when your employment ends. The longer you remain without lawful status, the more complicated it becomes to regain your lawful immigration status.  However, there is no set time in the applicable regulations that you must leave the United States.  As a matter of practice, if you still do not have an employer 120 days after your termination of employment, and you have not filed to change your status to another nonimmigrant status, you should consider leaving the country no later than 180 days from your last day of employment.  If you remain in the United States and you fail to maintain your lawful immigration status for 180 days or more after your employment ends, you will most likely face immigration obstacles later if a new employer attempts to sponsor you for both H status and for permanent resident status. 


Who will pay my family’s and my expenses to return to my country?

If you are in H status when you are terminated, your employer must offer to pay your reasonable return transportation costs.  This obligation need not include your family’s return transportation costs or the costs of moving your household to your country.  Most employers will provide an air ticket (not cash) to you when you tell them that you wish to return to your home country.  If you do not plan to leave the U.S., then the employer is not obligated to pay your return transportation costs.

If the terminating employer has filed an application for your adjustment of status, you may not be eligible to receive the return transportation costs at all since you may no longer be in H status. 


If I find a new employer who will file an H petition for me, when can I start working?  

As previously discussed, certain foreign nationals who have held H-1B status may start to work for a new H employer upon the filing of the new H-1B petition with the USCIS.  To benefit from this special “H portability” provision, you must have:

  1. Been lawfully admitted to the United States; and
  2. Since the date of admission, not worked without USCIS authorization, even for one day; and
  3. Previously held or currently hold H-1B status; and
  4. Have a non-frivolous H-1B petition.

If you meet all of these requirements, you may start to work with the new H employer when the employer files the new H petition with the USCIS.  The length of the gap between your last date of employment and the filing of the petition for the new H employer will affect the determination of whether you will have to leave the U.S. at some point during the USCIS process of adjudicating that new H petition.  


My employer had started the permanent residence process for me.  Do I have to start the process all over again if I find a new employer?

The answer depends on where you are in the process, as follows:  

Labor Certification is pending or approved:

Although you may not be able to use the Labor Certification with a new employer, if you have failed to maintain your status in the United States and a Labor Certification application was filed for you on or before April 30, 2001 you may be eligible to adjust your status without having to leave the country to do Consular Processing abroad.  This benefit may be available to those who meet certain physical presence requirements and those with a close family relationship to a U.S. citizen or lawful permanent resident or those with new employment upon which an application for permanent residence is filed. 

A Visa Petition (Form I-140) is filed and approved:   

If you are a national of a country with waiting times for immigrant visas (for example, India, China, Philippines, Mexico) you may be able to preserve your priority date, which is the date that your first employer filed the Labor Certification for you. 

Although it is not common practice, some employers may withdraw pending I-140s of employees who are terminated. If this happens, then you may not be able to benefit from the earlier priority date.  If the I-140 is approved and was not withdrawn, your new employer would still have to file a new Labor Certification and visa petition of its own for you, but your earlier priority date should stand and may speed up the completion of your permanent residence petition with your new employer.

Adjustment of Status Application filed:  

  1. Terminated 180 days or more after Adjustment of Status application filing.  At this point, the USCIS can approve the adjustment of status application even if you change employers, provided that you have an approved I-140 and are offered new employment in the same or similar occupational classification.  Your new employer will need to send a letter to the USCIS documenting your new job offer, salary, and details about the company and explaining why your new job is similar to your old job.  This 180-day “portability provision” is only available if you filed for permanent residence by filing the adjustment of status application in the United States.  It is not available if you were planning to obtain your immigrant visa through the U.S. consulate overseas and have not filed the adjustment of status application.
  2. Terminated within 180 days of the Adjustment of Status application filing.  You may not able to keep your permanent resident application “alive” unless the I-140 is approved and your adjustment of status application has been pending for 180 days.  If your termination date is before that, then you may only benefit from the approved I-140 priority date as described above.  It might be possible to structure your departure to occur after the 180 days have passed, although this is risky because the USCIS could take issue with the underlying eligibility for permanent residence which is based on a “permanent” job opportunity.  If your employer intends to terminate your employment, there may be no “permanent job.” Your application for permanent residence could be denied on this basis.   

Is there anything else I should know about my immigration status in the layoff situation?

You will most likely have many unanswered questions that relate to your particular circumstances and that have not been explained in detail in this Q&A. To obtain answers to your particular questions, you should seek the counsel of a lawyer who specializes in immigration law.

 

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