H1B Layoff: What Should You Do?

H1B layoff means disruption of plans for foreign nationals working in the U.S. on an H1B visa, and such uncertainty in an alien country can be particularly worrisome.

This problem is further compounded by undefined terms and often contradictory interpretations of the immigration laws.

Here we present suggestions on what to do if you are the casualty of an H1B layoff, and the timely actions you must take to avoid complications.

A. H1B Layoff - What Does The Law Say?

The amount of time that an H1B worker may stay in the U.S. after an H1B lay-off or termination is?not defined in the law or the regulations.

1. 30 Days? 60 Days?

Various USCIS officials over the years have opined an H1B worker must submit an application for an H1B employer change 30 days or 60 days of being laid off.

However, these statements are merely opinions and do not have the force of law.

2. 10 Days?

Some fear that a laid off H1B worker has only ten days to either apply for a new job or leave the U.S.?This is absolutely untrue.

The confusion regarding the 'ten day' rule probably stems from the regulations at 8 C.F.R. §214.2(h)(13)(I)(A), which governs the time period to be granted to a person entering the U.S. on H1B. It states:

"A beneficiary shall be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. The beneficiary may not work except during the validity period of the petition."

This regulation does not apply to those who have been laid off on H1B and are changing their employers or their nonimmigrant status.

B. Victim of An H1B Lay-off: What Do You Do Now?

Here are 5?suggestions?on what to do if you are the casualty of an H1B layoff.

1. Don’t Panic

If you are in H1B status and you get laid off –?don’t panic.

You have a visa that is still valid and you are within your period of authorized stay. So at this point?you are NOT accruing unlawful presence, even though you fall out of status?when you are no longer working for your H1B sponsor.

The date on your I-94 rules the question of "unlawful presence" for purposes of the 3 and 10 year bars. If you still have time on your I-94 then you are not accruing unlawful presence until that date has passed.

2. Search For Job

You should begin your job search as soon as the H1B layoff occurs. As you know, your job search will become your full time job until you find a new employer.

3. Maintain Legal Status

You must show a good faith effort to stay in legal status in the country. You can do this in a couple of ways.

1. If your former employer?revoked?your H1B at the time of H1B lay-off, you need to?file for a change of status to B-1/B-2 immediately. You will need a copy of your itinerary showing intent to leave the U.S. at the end of the requested B-1/B-2 status. You will also need financial proof, usually in the form of a bank statement, showing that you have enough money to stay in the U.S.
2. If your H1B status was?not revoked?when you were laid off,?you can find a new employer?and?file a change of employer petition.
3. If your H1B status was?not revoked?when you were laid off and if?you cannot find a new position?and get a change of employer petition filed within thirty (30) days,?you should apply for a change of status to B-1/B-2 visitor status.

4. Apply For H1B Employer Change

Once you obtain a new offer of employment, you should have the new employer submit an application for H1B employer change as soon as possible.

When the USCIS makes their decision on the new petition they have three choices:

1. The H1B job change request can be approved.
2. The H1B job change request can be denied, in which case you will have to depart from the U.S.
3. If the USCIS decides that too much time has elapsed since the H1B lay-off, they will approve the H1B petition and deny the application to change employers in the U.S. In this final scenario, after the Notice of Approval has been issued, you may depart the U.S. andif your old H1B visa has not expired, you may be able to simply travel outside the US and return using your original H1B visa and the original Notice of Approval (Form I-797) for your newly-approved H1B petition; or
4. if your old H1B visa has expired, apply for a new H1B visa abroad.

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