Options for foreign workers impacted by layoffs

Losing a job is stressful for anyone, and especially so for foreign workers whose right to remain in the United States is tied to their employment. So what options are there? I've provided more information below to help you better understand your options if you've been impacted by a layoff.

H-1B Visa

Upon your termination of H-1B employment, you lose status. However, the regulations provide for a discretionary 60-day grace period during which you may file to change to a new employer or file to change your status (i.e. to a dependent status if you have a spouse on a work visa; B2 tourist visa; F1 student visa). The grace period cannot exceed the validity of your I-94 though so you have 60 days or until your I-94 expiry, whichever comes first.

​​Additionally, it's important to leave a new employer time to finalize their offer and prepare an H-1B change of employer petition for USCIS. It's recommended to commence the change-of-employer process at least 15 days before the end of your grace period.

Under H-1B portability rules, you would be eligible to commence employment with your new employer upon filing of the new petition prior to the expiry of your grace period. However, the grace period is discretionary. USCIS has the full right to eliminate or to shorten the grace period on a case-by-case basis. In other words, there's no guarantees. In practice, we have been seeing USCIS approve change of employer [or change of status requests] filed during the grace period, but anxiety remains heightened until an approval is received. For change of employer petitions, the I-129 form can be filed with a premium processing request, along with an additional $2,500 filing fee, so that action is taken in 15 days rather than the normal 2-4 months under regular processing.

TN Visa

Canadian and Mexican nationals in TN status have a 60-day grace period to file a change of employer/change of status petition. The grace period cannot exceed the validity of your I-94 though so you have 60 days or until your I-94 expiry, whichever comes first.

The application for a TN is generally shorter and less complicated than other statuses, however because TN is a strict non-immigrant visa if you have started the Green Card process, it's important to check with immigration counsel to discuss how applying for a new TN may impact that application.

F-1 OPT

Once you lose your job, your unemployment clock starts and you are obligated to notify your school DSO within 5 days of termination. If you are on your initial 12-month OPT, you are allowed up to 90 days of cumulative unemployment during the validity dates of your EAD. If you are on your 24-month STEM OPT, you are allowed an additional 60 days of unemployment for a total of up to 150 days of cumulative unemployment cumulative unemployment during the validity dates of your regular OPT and STEM OPT EADs.

You may change employers before you reach the maximum unemployment time, but must notify your school's DSO and obtain a new I-20, noting the new employer. During STEM OPT employment, any new employer must be enrolled in E-Verify and new I-983 Training Plan is required, in addition to a new I-20 from your school.

Pending Green Card

If your employer had commenced sponsorship for an employment-based green card, you're likely wondering how losing your job will set you back on this front. Again, the answer will depend on how far along in the process you've come.

PERM Labor Certification started but not yet filed -> Will need to re-start through another employer.

PERM Labor Certification filed and pending -> Likely you will need to restart. The exception is if employer does not withdraw the pending PERM and is able to reconfirm the permanent job offer to you (rehire) within 6 months of the PERM approval. The result will depend on how quickly the employer bounces back and whether your permanent position remains open. If you're faced with a 6th year H-1B max out situation, it's best to start looking elsewhere.

PERM Labor Certification Approved, but I-140 not yet filed -> Likely will need to restart. An employer has 180 days to file an I-140 petition once the PERM is approved. To file the I-140 petition, however, it must attest that it has an opening for the position, which may not be possible in the middle of layoffs.

I-140 petition approved -> Likely need to restart, but there are important benefits, namely your priority date is retained for future EB-1/2/3 I-140 filings. In addition, if the I-140 was approved at least 180 days ago, H-1B workers are able to use the I-140 approval (even if withdrawn after the 180-day mark) to extend H-1B status beyond the 6-year limit. H-4 spouses may use it to obtain and extend H-4 EAD work authorization. Importantly, if the I-140 is withdraw prior to the 180-day mark, it cannot be used to extend an H-1B workers status beyond the 6-year max out date [or H-4 EAD applications]. The priority date, however, remains available to be 'recaptured' on another employer's I-140.

I-140 petition approved and I-485 pending -> Depends on whether 180 days have passed since the I-485 filing.

If the I-485 has been pending for at least 180 days and you can find a new job offer hat is the same or similar to the position on which your I-140 was based, you are eligible for job portability under AC21. This means your pending I-485 application will continue to be processed even though the underlying I-140 is no longer valid. The new employer should file a Supplement J on your behalf.

However, if your I-485 has been pending for less than 180 days and the layoff resulted in a withdrawal of your underlying I-140 petition, then the adjustment of status application is no longer supported and would be denied. However, if the I-140 petitioner is able to offer your the same position in the future, there is the possibility of re-filing a new I-140 and concurrent I-485 application, if your priority date is still current at that time. If your underlying I-140 petitioner is not able to offer you the position in the future, the process would need to commence anew through a new employer. You can, however, retain your earlier I-140 priority date.

We understand how turbulent it can be to lose your job unexpectedly, especially when your ability to live in the United States is tied to that job. The options forward vary greatly so it's recommended to consult with immigration counsel to determine a strategy based on your particular circumstances. Reach out to us at info@peludimmigration.com to discuss your situation.