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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.

To summarize:

  • 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.

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