Since the beginning of 2023, many IT companies have announced waves of staff reductions that have cut significantly into their workforce.1 Amazon has announced layoffs of 18,000 employees; Google 12,000; and Microsoft 10,000, to give but three examples.
These layoffs hit foreign nationals working for these IT companies especially hard. Many of these workers are in the United States on H-1B visas with their spouses and children in H-4 dependent status. Many foreign workers are surprised to discover that they may have to leave the US after they lose their job. Yet, laid-off foreign workers with H-1Bs have some options available to them.
H-1B visas are portable, meaning that the foreign national does not have to repeat the lottery process; they can take (port) their H-1B visas with them if they can find a new employer that will petition to assume sponsorship of the visa.2 Regulations permit a discretionary grace period that allows workers in H-1B classifications (and their dependents) to be considered as maintaining status following the cessation of employment for up to 60 consecutive calendar days or until the end of the authorized validity period, whichever is shorter (see 8 CFR 214.1(l)(2)).
Following this period, workers maintain their nonimmigrant H-1B status if a new employer timely files a change of employer petition on their behalf. Moreover, portability rules permit workers currently in H-1B status to begin working for a new employer as soon as the employer properly files a petition with USCIS, without waiting for the petition to be approved.3
Where layoffs are expected, workers on H-1B visas may want to be proactive in locating a new sponsoring employer. The sixty-day grace period is sometimes not enough to find a new employer, and to prepare and submit the required Form I-129 transfer application and an approved labor condition application (LCA) to the USCIS. In these cases, the foreign worker may need to depart the US.
In cases where the displaced worker is trying to stay in the US the foreign worker may need to be flexible on the salaries proffered by potential sponsoring employers in order to retain H-1B valid status. While any negative salary adjustment is a challenge, the H-1B visa, as stated above, allows the foreign national to search for new jobs while currently employed with the sponsoring employer. Therefore, it is best to prioritize visa validity over salary when conducting the job search.4
If a foreign worker cannot secure a new employer to sponsor their H-1B visas in a timely fashion, they may be able to remain in the United States if their application is filed to change to a new nonimmigrant status, such as F-1 or B-2 visitor nonimmigrant status, or their status becomes dependent on a spouse (e.g., H-4, L-2), if they apply for adjustment of status, if eligible. It is important to note, that the application to change status to a different non-immigrant category, just lie the petition to transfer to a different employer, must be received by United States Immigration and Citizenship Services (USICS) within sixty (60) days from the termination of employment and before the I-94 record expiration, whichever is shorter.
If the foreign national can apply and be accepted into a degree-granting program at a higher education institution before their H-1B (or H-4) status expires, they can obtain F-1 student status which will enable the foreign worker to remain the U.S. for the duration of their program. Eligible students can engage in up to 12 months of OPT employment authorization before completing their academic studies (pre-completion) and/or after completing their academic studies (post-completion). Students who earned a degree in certain science, technology, engineering and math (STEM) fields, may apply for a 24-month extension of post-completion OPT employment authorization (STEM OPT).5
It is also possible for an H-1B worker to apply to change of status to B-2 to allow for travel in the United States to engage in tourism before returning home. This option would allow the foreign national to extend their stay in the United States for up to six months.6 As these visas are intended for tourism and short stays, the foreign national cannot engage in employment.
Workers who are unable to timely file a change of status application or find a new employer who timely files a change of employer petition for the worker, may be required to depart the United States at the end of this grace period.
Whatever path the laid-off foreign worker chooses, it is essential that she or he remain in valid H-1B status at all times when they are physically present in the United States and avoid any unauthorized stay, also known as "status overstay."
The foreign national will experience severe consequences if she or he overstays their visa validity period. If the overstay is between 180 days and one year, USCIS may impose a three-year bar before the foreign national can reenter the U.S. If the foreign national's overstay exceeds one year, they may be prevented from reentering the U.S. for ten years.
Layoffs and job eliminations are inevitably stressful, but foreign nationals on H-1B visas do have options worth pursuing if they wish to continue to live and work in the United States. The crucial point is they should start pursuing one or more of these options as soon as they are notified of a layoff or job elimination. Time is of the essence and the foreign worker needs to have a proactive approach in order to achieve a viable solution.
Footnotes
1. Simon Hankinson, "Amid Big Tech Layoffs, Demand Still High for Foreign Workers with H-1B Visas. Something Doesn't Add Up." Heritage Foundation, March 6, 2023: https://www.heritage.org/jobs-and-labor/commentary/amid-big-tech-layoffs-demand-still-high-foreign-workers-h-1b-visas
2. https://www.dol.gov/agencies/whd/fact-sheets/62w-H1b-portability
3. American Competitiveness in the Twenty-First Century Act (AC21): https://en.wikipedia.org/wiki/American_Competitiveness_in_the_21st_Century_Act
4. https://documentedny.com/2023/02/08/h1b-visa-layoffs-lottery-twitter-facebook-amazon-meta/
6. https://travel.state.gov/content/travel/en/us-visas/tourism-visit/visitor.html
Thanks to Jeff Lande of the Lande Group, LLC, for his assistance with this article.
Anna Mikolajczak is an Attorney with Fakhoury Global Immigration in Troy, Michigan.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
