Many large companies have faced significant layoffs this year, including many technology companies, such as Google, Meta (mostly in 2023), Microsoft, and soon Cisco. Additionally, smaller companies are following the same route, hoping to reel in costs after years of over-hiring and spending. In the new unemployment data released on August 2, 2024, US Bureau of Labor Statistics indicated that unemployment rose to 4.3% from 4.1% in July; a reversal of the previous trends of historical lows around 3.4% just a few months ago.
Options for Non-Immigrants
This begs the question: how does a nonimmigrant on popular employment-based visas, such as, H-1B, TN, E-1, E-2, E-3 or O-1 category handle getting laid off? Do they have to leave right away? And how does this impact their family members?
In the past, the answer has always bee to find another job and transfer the visa to the new employer before the current employer withdraws the visa. However, finding a new job within such a short timeframe, is not always a practical approach. United States Citizenship and Immigration Services (USCIS) recognized this problem for people on employment-based visas and recently allotted a 60-day grace period This allows applicants and their new employers a sufficient amount of time to interview, prepare and file a new employment-based visa petition. See 8 CFR 214.1(l)(2). The maximum 60-day grace period starts the day after termination of employment, which is typically determined based on the last day for which a salary or wage is paid.
However, what happens when the 60 days are almost up and they have not yet found a new job? There are a few options depending on the circumstances. For example, if the individual is looking to advance their career through further education, such as a master’s degree, they may use the grace period to file a change of nonimmigration status to a student visa, such as a F visa. If the individual has a spouse in the United States on an non-immigrant visa, they can file a change of status to a dependents visa, such as H-4, L-2, F-2 (if the spouse is a student on F-1 visa), or even a TD visa.
The laid off employee is also allowed to change their status to a visitor B visa. USCIS has clarified that the individual is allowed continue searching for new employment while on B visa. More information can be found on the USCIS website.
Additional Circumstances
Uncommon or atypical situations provide more options. For example:
- The laid off individual can file for an Adjustment of Status application during this grace period if he or she has a current priority date based on an employment-based visa or a family-based visa.
- Certain individuals may qualify to apply for a Compelling Circumstances Employment Authorization Document. Beneficiaries of an approved employment-based immigrant visa petition (Form I-140) may be eligible for a compelling circumstances Employment Authorization Document (EAD) for up to one year if they: do not have an immigrant visa available to them based on the Department of State’s Visa Bulletin; and face compelling circumstances. A compelling circumstances EAD is a discretionary stopgap measure intended to assist certain individuals on the path to lawful permanent resident status by preventing the need to abruptly leave the United States. Workers who begin employment on a compelling circumstances EAD will no longer be maintaining nonimmigrant status but generally will be in a period of authorized stay and will not accrue unlawful presence in the United States while the EAD is valid.
Conclusion
Given the extra layer of complexity such an event adds to someone in the US on an employment-based visa, losing a job can be even a more difficult time and situation. However, now more than ever, there are several options available. It is essential for all individuals facing unemployment while on an employment-based visas to do the necessary research. For case specific information, help filing a change of status, or discussing which options are available and best for you, contact the trusted immigration team at Chugh, LLP.
