What to do if you lose your job in the US?
Representational image. (photo James Yarema via Unsplash)
After Twitter layoffs, Stripe cuts 14 per cent of its workforce, the focus is back on corporate giants — Amazon, Lyft, Intel, Apple — tightening their belts. What happens to the immigration status of laid-off immigrants on H-1B Visa in the US?
As Twitter began layoffs of roughly half of its 7,500-person workforce, the focus is back on other giants in the Silicon Valley — Amazon, Lyft, Stripe, Intel — tightening their belts and laying off staff. Online payments company Stripe has let go of 14 per cent of its staff, Amazon and Apple are freezing their hiring, transportation company Lyft would cut 13 per cent of its workforce. What happens to the immigration status of laid-off immigrants on H-1B Visa in the US? Is there a grace period? What are the status-change options?
H-1B employment is position and employer-specific. If your job has been terminated or you quit voluntarily, your H-1B status ends. The immigration regulations require that the employer notify both the US Citizenship and Immigration Services (USCIS) and the Department of Labor that it is withdrawing the labor condition application (LCA).
Grace period: The H-1B status ends when your employment is terminated, not when the visa is revoked. That means that your 60-day grace period is activated when you stop working for your employer.
Prior to January 17, 2017, the grace period for a terminated H1-B employee was only 10 days, which meant that those who have had their visas revoked or had experienced a layoff had to leave the US within 10 days. However, now H-1B regulations allow for a discretionary grace period of up to 60 days following the end of H-1B employment. This grace period extends from the day you cease working for your sponsoring employer and it is only granted once during each visa validation period.
It is important to note that the grace period only applies if the employment ends prior to the end of the H-1B approved petition, and the decision to grant all or a portion of the grace period lies with USCIS. The grace period does not apply to all individuals automatically. It is subject to the discretion of the Department of Homeland Security (DHS) and according to the rules, the DHS will determine whether facts and circumstances warrant shortening or refusing the 60-day period on a case-by-case basis.
The 60-day rule is very strict. Even if you find a job and your new employer files for a H-1B petition on the 61st day of the grace period, you will still need to leave the country. If you are not maintaining a valid US visa by the end of those 60 days, then you will be considered "out of status".
Cap-subject versus cap-exempt employer: It is important to note that only an employer can file for H-1B, it cannot be filed by an individual. If you are seeking to move to an employer who is subject to the H-1B cap, there may be limitations on the new employer’s ability to file the H-1B petition on your behalf because the petition will be cap-subject.
If the cap-exempt employer wants to reinstate the H-1B status, there is an advantage. While the employer will still need to start the H-1B process again from scratch, they will not need to wait until the cap window opens on April 1 and the beneficiary will not need to wait until October 1 to begin working.
Apply for a different status after being laid off: Change of status is legal. If your spouse is on L-1 or H-1B visa, you can apply to become a dependent as L-2 or H-4 which will accord you legitimacy of staying in the country. As a dependent, you can look for another job and revert to your H-1B status after finding another H-1B sponsoring employer.
You can also apply for a B2 (Tourist visa) status to "buy" time to stay in the country. The B2 is usually issued for a six-month stay with a possibility of extension. Under this visa category, you will not be authorised to work.
Dependent visa advantages: On November 12, 2021, USCIS announced that L-2 and E dependent spouses are no longer required to apply for an Employment Authorisation Document (EAD) to work in the United States. Instead, L-2 and E dependent spouses are authorised to work in the United States just by virtue of holding L-2 or E status.
The new USCIS policy also allows certain H-4 spouses to obtain automatic extensions of their EAD for up to 180 days. The automatic extension also applies to L-2 and E dependent spouses that choose to apply for an EAD as proof of work authorisation.
Volunteer work or unpaid training: If you have been laid off, you cannot volunteer or engage in unpaid training as a rule to stay in the US. Engaging in activities that would be considered employment, without the appropriate work authorisation, is a violation of the immigration status, and could jeopardise your ability to remain in the US, and to obtain future US immigration benefits.
Do not travel within the grace period: You cannot travel outside the US during the grace period. If you leave the country during that period, your grace period will end.
Difference between unlawful presence and being out of status: There is a difference between Unlawful Presence and Out of Status. An individual’s “authorised period of stay” is indicated on their I-94 or USCIS official policies. If you have accrued 180 to 365 days of illegal presence in the US, then you will be barred from the country for three years if you leave and attempt to return. If your unlawful presence exceeds 365 days, you are barred for 10 years.
A visa holder is "Out of status" when he/she has lost their status due to unforeseen violations of the visa terms (laid off, revoked). An individual will be considered "Out of status" if he/she is employed without first ascertaining the proper authorisations.
Return transportation home: If the laid-off H-1B visa holder has to return home, the employer has an obligation to provide "reasonable costs of transportation" for the employee back to his or her last place of foreign residence. The obligation does not extend to family members or for personal items such as furniture and belongings. It should be noted that if the employee voluntarily terminates employment, the employer is not obligated to provide the cost of return transportation. The employer can offer either a direct purchase of a plane ticket or cash payment. However, an employer cannot force an employee to accept the ticket. If the employee refuses to accept a ticket or cash payment for a ticket, the employer should request that the employee sign a statement, with independent witnesses if possible, indicating that the employee declines acceptance of the ticket or cash.
