While the U.S. economy is on a path of slow recovery and jobs have been
steadily added to the labor market, layoffs can be particularly stressful
for H-1B workers as they face the consequence of falling out of status.
Naturally, this presents many questions to laid off H-1B workers and those
who anticipate to lose their jobs. We set out below some commonly asked
questions and answers to clarify certain misconceptions about H-1B status
Question 1. I was recently laid off and my company told me that it notified
USCIS to revoke my H-1B petition. Will the revocation prevent my new employer
from filing an H-1B petition for me?
The revocation of H-1B petition upon employment termination does not prevent
approval of an H-1B petition filed by a subsequent employer (i.e. transfer
petition). Nor does the revocation subject subsequent petition(s) to the
annual H-1B quota.
However, the layoff will affect an alien’s ability to change employers
within the U.S. The H-1B status is lost as soon as employment is terminated.
When your new employer files an H-1B petition requesting a change of employer,
USCIS requires proof of the alien’s valid status as of the time
of filing. USCIS has discretion to approve the petition when there is
a short gap, but it can find that the alien is out of status, and therefore
approves the H-1B petition but denies the extension of status request.
In the latter situation, the alien will be required to apply for a new
H-1B visa at a U.S. consulate in one’s home country.
Question 2. I may be laid off soon. What measures can I take to avoid falling
out of status?
An alien anticipating a layoff should begin looking for a new job as soon
as possible and have the new employer file an H-1B petition to transfer
the alien’s H-1B status to the new employer. If the alien cannot
find a new job before being laid off, s/he may apply to change status
under certain circumstances to preserve his/her legal status in the U.S.
Often times, if an alien’s spouse is in H-1B or L-1 status, the
alien can apply to be a dependent of his/her spouse (H-4 or L-2, respectively).
Other times, an alien can apply to change status to F-1 student to return
to school. However, because it takes time to prepare an F-1 application
(i.e. taking requisite exams and applying to schools), aliens choosing
this route are encouraged to start preparing the application as soon as possible.
It may also be possible to request a status change to B-1/B-2 following
a layoff if an alien needs additional time to wind down personal affairs
in the U.S. such as arranging the move back to his/her home country, then
a B-1/B-2 change of status request may be a suitable option. This is because
the alien can utilize the time it takes USCIS to adjudicate the application,
even if the application is ultimately rejected.
Question 3. I changed status to F-1 in anticipation of a layoff. Will I
be subject to the annual cap if I find a new employer who is willing to
sponsor my H-1B visa?
No. Reverting back to H-1B status from other interim status such as F-1
or H-4 does not subject one to the H-1B cap again, provided the alien
has already been counted against the cap in the past six years. The alien
can begin working as soon as the H-1B petition filed by the new employer
Question 4. I was working in H-1B status and I was recently laid off. I
also have an Employment Authorization Document (EAD) received in relation
to my pending I-485. Can I work for a new employer based on my EAD?
Yes. An alien can maintain his/her legal status upon a properly filed I-485
and EAD. However, it is advisable that the alien maintain H-1B status
as a backup in the event that the I-485 application is denied.
Layoffs are stressful to everyone, aliens and U.S. citizens alike. If you
are concerned about maintaining legal status and avoiding immigration
problems, it is recommended that you seek advice from a qualified immigration
attorney. We at Verma Law Firm can advise you on questions regarding layoffs,
wage payments, and maintaining legal status. Please
click here to contact us or schedule a legal consultation.