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Layoffs or Reductions in Force

Layoffs or Reductions in Force

The United States Citizenship & Immigration Services (USCIS) issued regulations in November 2016 which provided for some degree of flexibility in the case of H-1B employees who are laid off and wish to remain in the U.S. to immediately find new H-1B employment.  Those regulations went into effect on January 17, 2017.  The responses below are based on these regulations, 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 their response will not be favorable. That said, here are some questions and answers designed to provide a general overview for H-1B employees. 

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?

Effective January 17, 2017, the USCIS regulations provide for a discretionary 60-day grace period during which an H-1B worker who ceases employment may be considered to be maintaining status for the purposes of filing for a change of employer/extension of status or change of status. This means in theory that the H-1B worker has up to 60 days – or until the expiration date of the current I-94, whichever period is shorter – to be sponsored for a change of employer.  It is not clear what standards the USCIS will use to grant the “discretionary” 60 day grace period.  

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The “10-day” rule has been superceded by the regulation which went into effect January 17, 2017.  

Can I benefit from the new H-4 EAD Rule if my spouse holds an H-1B visa and is in the green card process?

This may be possible, if you are one of two types of H-4 spouses:

Where the primary H-1B worker spouse is the beneficiary of an approved I-140 petition; or

Where the primary H-1B worker spouse has obtained a 7th year or more H-1B visa extension as permitted under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (known as “AC21”).

The Trump Administration has indicated it is reviewing the H-4 EAD rule and is likely to eliminate or curtail this program in the near future.  If you are eligible and would like to change your status to H-4 and apply for the EAD, it is advisable to do this as soon as possible.

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:

Under current regulations, you may be eligible for a discretionary 60 day grace period following termination of employment in which to file for a change of status or find an employer willing and able to file for a change of employer on your behalf.

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 might not give you work authorization (but see question above about H-4 EAD), but if you receive a job offer from another employer, you could change your status back from H-4 to H-1B.  If your spouse holds a different nonimmigrant visa status (L-1, O-1, E-3, e.g.) you also may be eligible to change your status to that visa’s dependent spouse status.  Many spouse statuses do not have work authorization.

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 withdraw your pending request for 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 longer you remain without lawful status, the more complicated it becomes to regain your lawful immigration status.  Under the regulations which went into effect on January 17, 2017, it appears you may have 60 days to depart the U.S. (but that is a matter of USCIS discretion, so not a guarantee). 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.  It is not clear how long this employer obligation lasts, though an offer that is open for 30 days should meet the legal requirement. 

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. Filed 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 would 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 new 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 be 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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