Layoffs or Reductions in Force: Employee Questions
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.
Q: My employer just told me that I am to be laid off. What happens to my nonimmigrant visa status?
A: USCIS regulations provide for a discretionary 60-day grace period during which H-1b, E-3, O-1, L-1 and TN workers whose employment ceases 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 foreign national 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. The petition for a change or extension of status must be filed within that 60 day grace period.
Q: 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?
A: There are several options available to you, depending on your particular circumstances:
- If you hold H-1b, E-3, O-1, L-1 or TN status, you may be eligible for a discretionary 60-day grace period following termination of employment in which to find an employer willing and able to file for a change of employer on your behalf or to file for a change of status. Please note foreign nationals can only benefit from one 60-day grace period during each authorized validity period of visa status.
- Consider your spouse: If your spouse holds H-1b, L-1, TN, O-1, or E-3 status, you could file to change your status to a dependent visa status. Note that H-4 status would not immediately give you work authorization, but if you receive a job offer from another employer, you could change your status back to H-1b. Otherwise, in some circumstances, you may be eligible to apply for and work pursuant to an H-4 EAD. For L-2s, pursuant to new USCIS interpretation, they are authorized to work “incident to status,” i.e. without having to file for an EAD.
- If your spouse holds a different nonimmigrant visa status (F-1, E-3, O-1, TN, etc.), you may be eligible to change your status to that visa’s dependent spouse status, although not all spouse statuses confer 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.
- You could return to school full time and file a petition to change your status to F-1.
Q: 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?
A: 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, you 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 significant immigration obstacles later if a new employer attempts to sponsor you for nonimmigrant visa status and for permanent resident status.
Q: Who will pay my family’s and my expenses to return to my country?
A: If you are in H-1b, E-3, or O-1 status when you are terminated, your employer must offer to pay your reasonable return transportation costs to your home country. This obligation need not include your family’s return transportation costs or the costs of moving your household. 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.
Q: If I am in H-1b status and I find a new employer who will file a visa petition for me within the 60 day grace period, when can I start working?
A: 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 (as opposed to waiting for petition approval). To benefit from this special “H portability” provision, you must have:
- Been lawfully admitted to the United States in H-1b status; and
- Since the date of admission, not worked without USCIS authorization, even for one day; and
- Be the beneficiary of a non-frivolous H-1b petition before the expiration of the period of authorized stay.
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 may 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.
Q: My employer just told me that I am to be laid off. What happens to my L-1 nonimmigrant visa status?
Same as for H-1bs, following a termination, there is a grace period of up to 60 consecutive days or until the end of the authorized validity period (typically your Form I-94) during each authorized validity period. During this grace period, you and your dependents will not be considered to have failed to maintain nonimmigrant status solely on the basis of termination of employment. You may use this time to 1) determine whether there is any way of qualifying for an Intracompany transfer with a different employer, although this would be unusual (see below) 2) change to another nonimmigrant visa status; or 3) wrap up your affairs and depart the U.S.
Q: Can I transfer to another employer in L-1 Status?
A: If you are offered a new position within the same family of corporations that sponsored your current L-1, you may be able to continue in L-1 status. To qualify for an L-1, you must have been employed with a foreign office of your multinational employer for at least 1 year within the 3 years preceding your admission to the U.S. So, unless you are offered another position within the same corporate family, you most likely will not be able to continue seamlessly in L-1 status.
If your current employer has a Blanket Approval, you may transfer to another employer covered by the same Blanket Approval without having to apply for a new visa as long as the roles are essentially the same. If the role is different, you would first need to file a new L-1 petition or apply for a new blanket L-1 at a Consulate abroad.
Q: My employer just told me that I am to be laid off. What happens to my TN nonimmigrant visa status?
A: Same as for H-1bs, following a termination, there is a grace period of up to 60 consecutive days or until the end of the authorized validity period (typically your Form I-94) during each authorized validity period. During this grace period, you and your dependents will not be considered to have failed to maintain nonimmigrant status solely on the basis of termination of employment. You may use this time to 1) find another TN employment and file a new TN petition (or apply for a new TN visa); 2) change to another nonimmigrant visa status; or 3) wrap up your affairs and depart the U.S.
Q: Can I transfer to another employer in TN Status?
A: Your TN employment is specific to your current employer. It is possible for a new employer to file a new TN petition on your behalf, or have you apply for a new TN through the Canadian pre-flight/port of entry process or the Mexican consular process.
Q: My employer just told me that I am to be laid off. What happens to my F-1 nonimmigrant visa status?
A: F-1 students working pursuant to either Optional Practical Training (OPT) or a STEM OPT extension must report material changes to their DSOs, including the end of their employment, within 5 days. F-1 holders on their initial 12-month OPT period are entitled to up to 90 days of unemployment. F-1 holders on a 24-month STEM OPT extension are entitled to an aggregate of 150 days of employment.
Q: Can I transfer to another employer in F-1 Status?
A: Yes. F-1 holders on their initial 12-month OPT period must notify their DSO and get a new Form
I-20 to reflect the change of employment. F-1 holders on their 24-month STEM OPT extension must complete a new Form I-983 training plan with a new E-Verify employer, submit it to their DSO within 10 days of starting new employment, and obtain an updated Form I-20.
**Permanent Residency Process**
Q: 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?
A: The answer depends on where you are in the process, as follows:
Labor Certification (PERM) is pending or approved:
A PERM Labor Certification is typically only valid for the specific employer, job location and duties detailed on the application. The PERM is for the specific position that the employer intends for you to fill and which you intend to fill when you are approved for lawful permanent residence.
If a corporate change results in the formation of a new employer, the successor entity may be able to take certain steps to continue the permanent residency process, depending on where the employee is in the permanent residency process, when the corporate restructuring occurs, and whether there are other material changes to the job description, location or other terms.
Otherwise, if your employment ends and your employer has only prepared or secured a certified PERM certification, you will need to begin the permanent residence process again with a new employer.
An Immigrant Visa Petition (Form I-140) is filed and approved:
You may be able to preserve your priority date, which is the date that your previous employer filed a Labor Certification for you. This is a particularly helpful rule if you are a national of a country with waiting times for immigrant visas (for example, India, China, Philippines, Mexico).
Although it is not common practice, some employers may withdraw pending I-140s of employees who are terminated. The priority date will be lost only if the I-140 is revoked for reasons of fraud, material misrepresentation, invalidation or revocation of the underlying PERM, or material error in the approval of the petition.
If the I-140 is approved, your new employer would still have to file a new Labor Certification and I-140 visa petition of its own for you, but you should be able to recapture your earlier priority date (i.e. keep your place in line) and this may speed up the completion of your permanent residence petition with your new employer.
Note: if your I-140 is not based on a PERM, but is, instead, a Multinational Manager I-140 (EB-1), there is no government-recognized ability to amend your Multinational Manager I-140. This means you must be able to return to the U.S. employer that sponsored your I-140, and the foreign entity where you got your qualifying managerial experience must continue to exist, operate and be related to your U.S. employer. Otherwise, you will need to start the permanent residence process over.
Adjustment of Status Application filed:
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.
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.
Q: Is there anything else I should know about my immigration status in the layoff situation?
A: 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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