H-1B Employee & just got laid off?? Let’s see your Options

By Anuradha Kumbhar

Getting an H-1B visa is like a dream come true for many ignited minds. H-1B visa comes with bundles of advantages but along with it comes one disadvantage; being dependant on the Employer (Sponsor) for maintaining your legal status of H-1B Employee. Due to certain unforseen circumstances you may be dismissed from your job & during such crisis it is of prime importance to not panic and act quickly & thus a little prior knowledge on the legal consequences of being laid off & possible solutions on retaining or changing the status are a must for every aspiring or current H-1B visa holder.

The day you stop working for your Employer either by the virtue of being laid off or fired you lose your H-1B status. Despite this fact, the most common belief or confusion about lay off is that an employee gets a 10days “grace period” to seek an alternative options.

This confusion appears to have arisen from the regulation. As per 8 C.F.R. §214.2(h)(13)(I)(A),

“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.”

However, there is no clarification on the part when an employee has been laid off. Thus, technically no such grace period exists. But talking of the situation in actuality, many H-1B employees need a few days to either find a new Employer, change the status or to sort out and pack up their things in case they choose to leave the country. Therefore, although the grace period is not legally granted, the USCIS officers many let go or overlook a brief gap between the loss of status and new application under extraordinary circumstances. Hence, the length of a grace period is highly subjective.

There is another common myth that if an H-1B employee receives a severance payment or remains on employers payroll without reporting to work, he maintains a H-1B status. It is of vital importance to note that H-1B employees during the aforementioned periods do not hold a valid H-1B Status.

Legally, a terminated or laid off H-1B employee who remains in The United States of America is in violation of his status but there is no law or regulation stating the time period for which he may stay in the US on being laid off or terminated. Therefore, at present, it is the discretion of the USCIS officials to grant any change of status or extension despite failure to maintain the status. USCIS normally approves such requests through applications if the H-1B Employee is out of status for a very short period of approximately 10 days or less.

Although there is no official report that gives an approximate length period, a few immigration blogs say that there are times when USCIS has approved change of Employer when the paystubs are less than 30 days (and sometimes even 60days) old & overlooks the short gap.

Moreover, USCIS has proposed a period of 60days within which an H-1B worker may seek new employment. However, as of now the same is only proposed. But it will certainly be a huge relief for all the H-1B Employees if the proposal is accepted.

Having said that the H-1B Employee loses his H-1B status on the last day at work, it becomes important for him to “show a good faith effort to stay in legal status in the country”. To your relief there are a couple of ways through which you can remain in legal status even after losing your job. The only key is to analyze your situation, act appropriately and promptly. Enumerated below are situations and solutions to each:

1.In case you unfortunately happen to lose your job not due to your performance but due to an economic slow or business slow down, there are high chances that an Employer might beforehand inform you about his intention of laying you off. After which you might receive an advance notice. Such a notice serves as an angel in disguise since you can start acting in advance before you lose your status. Your prompt action should be to find an employer who can sponsor your H-1B Petition and can file Form I-129 on your behalf. On receiving your Application, USCIS will normally approve your H-1B Transfer/ H-1B Transfer & Extension Petition and provide you with Form I-797 (Approval Notice) & new I-94 (Arrival Departure Form) subject to you maintaining a valid H-1B Status and filing of I-129 before your termination. In this way you will be able to change your employer without having to depart US. The plus point in Transfer Petition is that you can actually begin working for that employer even before the USCIS approves the Petition. In case, you fail to find a new employer despite having a window period, it is advisable for you to apply for change in Status before you lose the H-1B Status i.e. before your last day at work.You will remain in status for upto 120 days as long as the application for change in status is pending. In the mean time you should still try finding a new employer who can sponsor you so that you can reapply for H-1B Status. The good part here is you will still fall under CAP Exempt and will not be subject to H-1B CAP.

2. In certain cases, it becomes impossible for your employer to inform you beforehand about your lay off. Under such circumstances of lay off without prior notice, you may still go ahead and look for a new employer. It is significantly important to note that you will need to provide evidence about you maintaining your H-1B Status while your new Employer applies for Form I-129 on your behalf. The only acceptable evidence in such a case is copies of your pay stubs. The lesser the gap between your pay stubs and filing of Form I-129, the better are the chances of USCIS overlooking the gap & approving your Form I-129 under H-1B Transfer or Change in Employer.

Once your Application has been received by USCIS, USCIS may make following decisions:

a. Approve your Change of Employer Request

b. Approve your H-1B Petition but deny your application to change of Employer in the US if they feel there is too much gap between your last pay stubs and application for H-1B transfer. Under such circumstances after the issuance of Notice of Approval from USCIS, you will have to leave the country and return:

- using your original H-1B visa &

- Original Notice of Approval (The one that is issued for your newly approved H-1B petition).

c. Deny the H-1B Petition. Under such circumstances you will have to leave the country. As per the immigration regulation, your employer has certain obligations to fulfill after your termination. For example: Your Employer is liable to pay you the reasonable costs of transportation in case you have been dismissed from work. He is however not liable to pay the transportation cost for your dependants.

From the above scenarios it can be said that, the USCIS normally approves your H-1B petition if the gap between your pay-stubs and application is less. In other words, USCIS may approve your H-1B Transfer Petition despite you losing your status & not working for the former Employer for a short period.

3. In case your Employer has informed the USCIS about your laying off, USCIS will revoke your petition approval. Under such circumstances you will immediately have to apply for B-1/B-2 Status. While applying for such a status you will have to show that you have sufficient funds during your stay in US under the requested B-1/B-2 status. In case luckily you find a new employer after changing your status to B-1/B-2, you will have to wait until your H-1B Petition is approved. Only then will you be able to begin working.

4. In case you fail to find an Employer prior to your lay-off (if you have been served with advance notice) & if studying further is what seems to be in your best interest then you can think of changing your status to F1. However, there are many factors that need to be considered while exercising this option. Firstly, you have to maintain your H-1B status & if your H-1B status will end more than 30 days before the course start date on your I-20, you cannot apply for a change of status inside the U.S. Under such circumstances you will have to leave the US and apply for an F1 visa in the US Consulate in your country & re-enter on an F1 Visa. Secondly, even though you are served with a notice for lay well in advance, many Universities need a GRE/GMAT score. In case you don’t have one, you will have to short-list the Universities which wave of the GRE/ GMAT on the basis of work experience of four years or more which is relevant to the field of study you are interested in.

In my opinion, although this option is available, this is not really a feasible or recommended option. Also, there exists a risk of your F1 visa being rejected. The reason behind it is very simple. H-1B visa is a dual intent visa (immigrant & non-immigrant visa). Whereas F1 visa is an non-immigrant visa alone. Thus, to prove the contrary intent might be difficult.

5. In case you were earlier on H-4 visa (Dependant of H-1B), then, it is certainly wise to change your status to H4 as you can legally maintain your status and simultaneously keep looking out for a new employer to file a new I-129 while staying in US. The only drawback is that you will have to wait until your new I-129 gets approved.

Conclusion:

Having analyzed the possible situations remember a few things: Firstly, while you are maintaining a valid H-1B Status, immediately try finding a new employer who will file Form I-129. Secondly, if you are running short of time to find one then apply Form I-539 to change your status. Thirdly, if you think you are a little too late to either find a new employer or change your status, it is wise to return to your country & try finding an H-1B sponsor. The mantra is to ‘not panic’, ‘carefully analyse your situation’ & ‘act quick’. It is a known fact that, every optimum situation has a down side. After all, “Every rose has its thorn” but “For every dark night there’s a brighter day”.

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