Introduction
Amid widespread layoffs in 2023 in the United States, immigrant workers, especially those with H-1B visas, face uncertainty. Despite top 30 H-1B visa employers hiring 34,000 new workers in 2022, they also laid off at least 85,000 employees in early 2023, according to an analysis by the Economic Policy Institute (EPI).Facing a layoff on an H-1B visa can lead to overwhelming uncertainty and stress, adding to the challenges a foreign professional in the U.S already face. In such moments of turmoil, understanding the available options becomes crucial.In this article, we'll explore the best alternatives for those who have been laid off while on an H1B visa. From exploring options for visa transfer to understanding what grace periods entail, we aim to offer insights to alleviate the burden of uncertainty.
Understanding Job Loss on the H-1B Visa
An H-1B visa revocation occurs when an employer decides to retract your H-1B petition, either before its approval or during your H-1B status. This withdrawal can stem from various reasons such as closure of the business or termination of employment. Losing your job, either due to layoff or termination, prompts the withdrawal of your H-1B petition, potentially placing you out of status.When an employer initiates H-1B withdrawal, they must file a request with the USCIS, kickstarting the revocation process. This involves submitting necessary documentation, a procedure that may extend over several months. Thus, H-1B holders facing revocation should seek alternative H-1B sponsorship immediately to maintain lawful status.
The 60-Day Grace Period After H1B Job Loss
The 60-day grace period after H-1B job loss provides crucial support for foreign professionals facing unexpected employment challenges. Previously, individuals immediately risked out-of-status status and had to leave upon job termination. The Department of Homeland Security (DHS) introduced this policy in January 2017 to address practical difficulties faced by many foreign workers.During this period, H-1B holders have two months to secure new sponsorship, adjust immigration status, file petitions, or arrange to leave the country. This provision, applicable once per visa validation period, prevents immediate out-of-status designation, allowing professionals to manage their immigration status responsibly amidst changing circumstances.
Legal Implications of Exceeding Grace Period
It's essential for H-1B visa holders to promptly inform USCIS if they find themselves laid off on H-1B, allowing time to look for new employment or explore alternatives. Understanding unlawful presence versus out of status is also essential.Unlawful presence results from exceeding your authorized stay on I-94 or USCIS policies, while out of status occurs from unexpected violations of your visa status like layoffs or revocations. Remaining in the U.S. out of status can lead to some serious consequences, including reentry bars lasting 3-10 years based on the duration of illegal presence.
Best Options After Job Loss on H-1B Visa
To ensure legal compliance after job loss on an H-1B visa, your priority should lie in maintaining lawful immigration status. That being said, here are some of the options you can explore in order to maintain legal status:
Finding New H-1B Employment
Securing new employment as an H-1B visa holder after losing your job should be top priority. You can transfer your H-1B without waiting for the next lottery, but finding a sponsor and meeting employer requirements can be tough. At Algorizin, our mentors provide full job hunt support, guiding you through job search tactics and resume improvement to find the ideal H-1B sponsor for you.
Find New Employer on H1B
Steps to find a new employer for H1B
- Update your resume: Ensure your resume is up-to-date with your latest skills, experiences, and achievements.
- Utilize professional networks: Reach out to professional networks, such as LinkedIn, and connect with recruiters and professionals in your industry.
- Network with peers: Connect with peers and colleagues who may have leads or referrals for potential job opportunities.
- Research H1B sponsors: Explore publicly available H1B employer databases to identify companies that sponsor H1B visas .
- Document preparation: Gather essential documents including your resume, pay stubs, university degree, transcript, and existing H-1B approval.Additionally, request your previous employer to share your previous H-1B application as a valuable roadmap for approval.
- Timely application: Submit your new H-1B application before the 60-day grace period expires.
- Premium processing: Consider opting for Premium Processing to expedite the decision-making process, typically providing a response within 15 days.
Changing to a Different Work Visa
If you're facing a job loss on an H-1B visa and struggle to secure sponsorship for a transfer, exploring alternative work visas is crucial. Consulting an immigration attorney can swiftly assess your eligibility for these H-1B visa alternatives:
- H-4 Dependent Visa: Spouses and children of H-1B holders may qualify for the H-4 visa, enabling them to reside in the U.S. while their family member maintains H-1B status.
- O-1 Visa: Reserved for individuals demonstrating extraordinary ability or achievement in their field, the O-1 visa caters to entrepreneurs, leading professionals, and innovators.
- E-1 or E-2 Visa: Citizens of specific treaty countries can pursue E-1 (for traders) or E-2 (for investors) visas, facilitating business ventures or investment activities in the U.S.
These options maintain lawful status and potentially continue employment in the U.S. However, navigating visa processes requires legal expertise. Seeking guidance from experienced immigration attorneys can offer tailored solutions and clarity on available pathways.
Changing H1B to a non-work visa
If you have savings and don't need immediate income, you can remain in the U.S. by engaging in non-work activities permitted by certain visas. Consider the following options:
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B-1 or B-2 Visitor Visa: These visas allow individuals to stay in the US for tourism, medical treatment, or visiting friends and family
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F-1 Visa for Studying: Pursuing academic studies on an F-1 visa can provide a productive way to utilize your time while in the U.S.
Although these non-work visas are not long-term solutions, they offer an opportunity to remain in the US temporarily while you assess your options regarding your H-1B or other work visas.
Applying for a Self-Sponsored Green Card
A self-sponsored green card presents a viable pathway for individuals on H-1B visas seeking permanent residency. Many H-1B holders may qualify for one of two self-sponsored green cards:
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EB-1A for Extraordinary Ability: Reserved for individuals who demonstrate extraordinary ability in their field, this category acknowledges exceptional talents and accomplishments.
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EB-2 NIW for Exceptional Ability: Eligible candidates must satisfy at least three of six criteria demonstrating exceptional ability, including significant work experience, high remuneration, and memberships in professional associations.
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EB-2 NIW for Advanced Degree: Targeting individuals with advanced education, this category encompasses those with a Master’s degree or higher, or a Bachelor’s degree coupled with five years of progressive work experience.
Leaving the U.S.
Leaving the U.S. should be a last resort for H-1B visa holders facing job loss, but it's wise to have it as a backup plan. Departing doesn't mean a permanent exit; individuals can return as visitors to address remaining matters.If relocation is necessary, opportunities like applying for remote U.S. positions or exploring overseas jobs exist, especially with remote work becoming more common. Canada offers an attractive alternative, with a pilot program allowing up to 10,000 U.S. H-1B visa holders to obtain a three-year open work permit.
Using Bridging and Porting for H1B Visa
Bridging
Bridging H-1B petitions lets individuals pursue multiple job opportunities simultaneously, improving their employment prospects. This process, known as "bridging the petition," allows smooth transitions between potential employers. For instance, someone may start the H-1B process with Company B after leaving Company A. If offered a better opportunity by Company C, they can pursue the H-1B through Company C instead.As long as the I-94 card remains valid, individuals can file new petitions while awaiting decisions on previous ones. This flexibility empowers candidates to align their career paths with companies that suit their skills. It's crucial to note that subsequent petition outcomes depend on previous ones' statuses. Denial of Petition A or any subsequent petition in the sequence could result in automatic dismissal of subsequent petitions.
Porting
Porting enables individuals to start a new job before their new H-1B petition approval, avoiding unauthorized employment. The process begins when the prospective employer submits an I-129 form, allowing a smooth transition into the new role or visa status adjustment. Established under The American Competitiveness in the 21st Century Act (AC21) in 2000, porting aims for seamless transitions. However, new petition approval isn't guaranteed, and the I-129 form filing requires maintaining current H-1B status.
Severance Package and Unemployment Benefits
Severance packages are vital for H1B visa holders facing layoffs and are often negotiable. While larger firms may offer less flexibility, mid-size and small companies may align severance with prevailing wage rates, considering the H1B salary. H-1B workers typically have limited eligibility for unemployment benefits due to state and visa constraints.However, U.S. immigration regulations, such as 8 C.F.R. § 214.2(h)(4)(iii)(E), requires employers to cover reasonable costs for returning H-1B workers to their last country of residence upon termination. Engaging in negotiations with employers extends the window for job search and sustains visa status, offering relief during transitions .
Conclusion
In facing the uncertainty of layoffs on an H-1B visa, understanding your options is crucial. Forecasts for 2024 suggest a challenging landscape, with a substantial 92% of employers preparing for potential staff reductions due to economic uncertainties, including the lingering effects of the COVID-19 pandemic.However, there is hope amidst adversity. Revelio Labs' data reveals that more than 90% of H-1B visa holders who were laid off successfully found new employment that met the program's stringent criteria. As you navigate this challenging period, consider diverse pathways to rebound.Explore opportunities for upgrading your skills through programs like Algorizin's bootcamps, which promise to equip you with essential tech skills within three months. Moreover, our H-1B processing services are available to assist you through the visa application process, providing expert guidance every step of the way.
FAQs
Don't I have any rights to my H-1B job?
Unless under a written contract, U.S. law deems H-1B and other employment as "at-will," allowing employers to terminate employment for lawful reasons at any time. However, you retain rights similar to those of U.S. citizens regarding termination procedures. If your company provides severance packages to employees, you are entitled to this benefit.
What happens to my H-1B status if I lose my job?
If laid off on an H-1B visa, your status is at risk. Usually, you get a 60-day grace period to secure new sponsorship or transfer. During this period, you can stay in the U.S. but must find a job or exit the country to uphold your legal status.
How long can I stay in the U.S. on an H-1B visa after losing my job?
If terminated on an H-1B visa, you get a 60-day grace period under the Federal Register's final rule. During this time, you can remain in the U.S. to secure new sponsorship or prepare to leave the country.
Can I change to a different visa type after losing my H-1B job?
Yes, you can explore options to change your visa status after losing your H-1B job.
What does being "out of status" mean for an H-1B holder?
Being "out of status" for an H-1B holder signifies a loss of lawful immigration status in the United States due to violations of visa terms. This includes unauthorized work, overstaying the authorized period, or violating other visa regulations.
What are the consequences of unlawful presence in the U.S.?
Unlawful presence in the U.S. can have serious consequences:
- You may be unable to enter or re-enter the U.S.
- Accumulating unlawful presence can lead to 3-year or 10-year bars on re-entry.
- You may face difficulties obtaining visas or green cards.
- Even one day of unlawful presence can void your visa.
- Discovery of unlawful presence can result in deportation.
What are the costs associated with transferring my H-1B?
Typically, your new employer will be responsible for filing the basic H-1B petition filing fee of $460. Additionally, if you opt for premium processing, your employer will have to pay $2,500.
Can a revoked H-1B be reinstated?
If your H-1B visa is revoked by the USCIS, your approved I-129 with that employer becomes invalid. To reinstate your H-1B status with the same employer, they must file a new petition for you. This process essentially starts over, requiring the employer to submit a new application to the USCIS and pay H1B fees.
How can I check if my H-1B is revoked?
If your H-1B visa is revoked, you'll get a notice from the USCIS, starting a 60-day grace period. To check your status, visit the USCIS case status page and enter your case receipt number.
What documentation is needed to transfer my H-1B to a new employer?
To transfer your H-1B to a new employer, you'll need:
- U.S. visa, I-797 approval notice, and I-94 arrival/departure record.
- Updated resume.
- Documentation of employment status: pay stubs, employer letter, or leave of absence letter.
- Academic credentials: university degree, transcripts, and evaluations.