Every year, thousands of immigrant employees holding H1B visas are laid off. They are put in a grace period of 60 days to find a new path to continue to reside in the United States. While the most common option is to find a new employer who can sponsor H1B visa holders, employment is not the only path to staying in the country.
Documented spoke with four immigration lawyers and experts who are responding to an increase in inquiries about H1B visas following a wave of layoffs at Amazon, Meta and Twitter that started in fall 2022. The experts advise individuals to seek legal representation and find other solutions like changing their status to other types of visas, starting their own business or becoming a student.
The information in this article is solely for informational purposes only and does not constitute legal advice. For legal assistance please see our list of pro-bono lawyers in New York.
What is the H1B visa?
The H1B visa is a nonimmigrant visa that serves as a venue for U.S. based companies to add high-skilled foreign employees to their workforce, primarily through specialty occupations that require expertise and at least a bachelor’s degree or its equivalent.
Foreign workers interested in applying for an H1B visa must register electronically for the H1B visa lottery, which has an annual cap of 65,000 visas annually. 20,000 additional visas are available for workers who hold a master’s degree from an accredited U.S. university.
Those who qualify for the visa need to have the sponsorship of an employer who will file the petition for temporary employment authorization, which usually lasts three years and can be extended. The employer must also show that there is a lack of qualified U.S. applicants for the role.
According to USCIS, in 2021 there were 407,071 foreign H1B visa holders in the country, with 39% of that figure related to the tech industry or computer related occupations.
What happens when an H1B visa holder is laid off?
The H1B category is dependent on the visa holder’s job. When the sponsoring employer lays off the employee, it creates a scenario where the employee either has to find a sponsored position (not all jobs are sponsored) or find a different path to remain in the U.S. under a different nonimmigrant visa status.
Under section 8 CFR 214.1(l)(2), H1B laid off employees maintain their nonimmigrant status for 60 consecutive days or until the end of their authorized validity period, whichever is shorter, says Qi Zeng, an immigration lawyer at Newland Law Firm.
Zeng explains that the 60 day period is also known as the “grace period,” and that it starts on the “date that they last stopped working.” For example, Zeng explains, if an H1B visa employee receives a notice of termination of employment on January 10 saying their last day of employment is on the 20 of that month, then the employee’s 60-day grace period will start the day after January 20.
But if the employee’s authorized stay (I-94) expires in fewer than 60 days, then the employee will have a shorter time frame to sort out their situation, accentuates Zeng.
What about severance packages?
Sometimes companies give severance packages which offer several months’ salary. But the grace period for an H1-B visa holder starts from the day after the last employment day and not the period that the severance package may cover, said Lenni B. Benson, Distinguished Chaired Professor of Immigration and Human Rights Law at New York Law School.
On certain occasions, a company may decide to keep their employees on the payroll even after they are laid off, which could provide additional time for the H1-B workers to find a solution to their status.
What if I don’t get a new job within the grace period?
Those who cannot get a new job before the grace period or authorized time of stay expires, the employee must either leave the country or change to another nonimmigrant status before the expiration dates to avoid accruing unauthorized stay.
There are several nonimmigrant visa options available for H1B visa holders to consider changing into. Some of the options may be more feasible than others but they also vary per individual so it is best to get legal advice from an immigration lawyer as soon as possible, says Benson.
One path to continue to remain in the United States is by becoming a F-1 visa student. This requires an individual to enroll and be accepted in an accredited school. The application process to transition to F-1 visa status can take anywhere from 9 to 12 months, said Ying Cao, Managing Partner at Ying Cao Law LLC.
Cao says that another option is transferring to a B-2 visa visitor visa, which permits stay for up to six months — on a single period —that can allow a person enough time to arrange their affairs and/or find a more stable solution. The six month period can also be extended by filing the I-539 form through USCIS.
There are also more permanent solutions, such as marrying a green card holder. See our guide for a full list, as explained by immigration attorneys. All experts Documented spoke to agree that it is best to speak with an immigration attorney to see what is the best path available.
What should the H1B holders do if they find a new job within 60 days?
Zeng explains that the H1B visa holder must have the new employer submit the H1B transfer application as soon as possible. More importantly, since USCIS must receive the H1B transfer package within 60 days of the grace period, the worker must find a job within 45 days of being fired. The reason is that a new employer’s attorney needs at least about 15 days to prepare an H1B transfer application.
The employee can start working immediately after they get the receipt of the H1B transfer from USCIS, without waiting for the approval, Cao said. She added that if the employee receives a request for additional documents and or proof, the employee can work with the lawyer and the company to prepare the required documents together without interrupting the work.
What is the biggest challenge for immigrant workers after being laid off?
Like Cao and Zeng, Matthew G. Curtis, Partner at Lightman Law Firm LLC, has also seen an increase of clients needing assistance with their H1B status.
Curtis adds that for those who cannot transition to other nonimmigrant status it is often difficult to find a job that is willing to sponsor the H1B visa holder, and go through all the legal paperwork needed to employ the worker.
“There are companies that just won’t enter in sponsorship at all. And there’s companies that don’t really know what that entails until once they learn more about it, maybe they didn’t get turned off. It’s hard enough as it is to get a job, but then when you factor that (H1B visa sponsorship) in, that becomes more difficult as well,” Curtis said.
Also read: What happens if you overstay your visa?