Timely Layoff Guidance from USCIS
For nonimmigrant workers caught up in the recent wave of layoffs, USCIS published a reminder of several options for remaining in the United States based on existing rules and regulations. You can read more about these options at the USCIS’ newsroom.
Current regulations allow certain unemployed nonimmigrant workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents) 60-days or the expiration of their period of stay (I-94 expiration) to get a new employer to file an extension petition on their behalf or to file a change of status application.
If unable to find a new employer or file a change of status application during this period of time, the nonimmigrant worker should depart the United States prior to the expiration of the 60-day period or expiration of their I-94 (whichever comes first).
Portability rules allow a new employee to begin working for an H-1B petitioner as soon as the new H-1B petition is filed with USCIS as long as the last worker was not employed without authorization since their last entry into the United States.
Portability rules allow workers with pending Adjustment of Status Applications (Form I-485 or green card application) to transfer their underlying I-140 application to a new employer as long as the new position is in the same or similar occupational classification.
Change of status applications include changing status to a become the dependent of a spouse (e.g., H-4, L-2). Some dependent status types are eligible for employment authorization. You can also consider changing status to become a student (F-1) or a visitor (B-1 or B-2).
The timely filing of a legitimate extension of stay or change of status stops the accrual of unlawful presence up until the point where an application is adjudicated.
Some workers may be eligible to self-petition for an immigrant visa concurrently with an adjustment of status application (EB-1, EB-2, EB-5). Applicants for immigrant visas are eligible for an Employment Authorization Document.
Workers who are the beneficiary of an approved employment-based immigrant visa petition (Form I-140) may be eligible for a compelling circumstances EAD for up to one year if they: do not have an immigrant visa available to them in the Department of State’s Visa Bulletin, and face compelling circumstances.
Some petitions are eligible for an expedite.
Departing the United States is an option while seeking employment opportunities in the United States. For H-1B and O workers who depart the United States after the involuntary end of employment, the reasonable costs of transportation to the worker’s last place of foreign residence must be borne by the H-1B employer or by the O petitioner, as applicable.
H-1B workers outside the United States have been counted against the cap and can seek employment and readmission to the United States using their H-1B.
The guidance provided from USCIS while not an exhaustive list of options is helpful and appreciated, but each impacted nonimmigrant worker is dealing with a myriad of decisions during a very difficult time. Deciding which option is best can depend on a variety of facts unique to their life. Working with an experienced immigration attorney when going through a layoff can be the difference you need.