I’m on my H1B visa but got laid off yesterday. What should I do next? How do I follow the 60-day rule?
Laid off H-1B employee
When your H1B employment ends, your H1B is immediately out of status.
H1B withdrawal process
Your former employer must file a withdrawal of H1B employment petition to USCIS, noting that your employment was terminated. A new H-1B employer’s petition will not be subject to the H-1B cap. a person with an H1B visa need to seek another employer that sponsors H1B to maintain H1B status.
60 Days Rules
Employees who were laid off have 60 days to seek another H1B sponsor employer,
H-1B Portability Provisions of INA § 214(n), AC21 § 105 provide that should a new H-1B employer be found within I-94 validity the new employer may file an H-1B change of employer petition on your behalf. The H-1B beneficiary with a change of employer petition filed within their I-94 validity may begin employment with a new employer upon USCIS receipt of the new employer’s H-1B change of employer petition.
USCIS will censor and approve the new employer’s petition to decide whether to extend your stay in the US or require you to leave the country. The I-140 Final Rule memorialized USCIS practice to approve H-1B change of employer petitions AND the extension of H-1B stay in the US for petitions filed within 60 days of the last paystub.
Therefore, keep all your paystubs in the record as the paystub is evidence of your visa status.
What’s the next step if you get laid off as a foreigner/ H1B holder in the U.S.?
As an international student who was laid off last year, I would like to share my personal experience of getting laid off, and hope it helps.
Here are 6 key points I’ve summed up for you to get prepared for:
1. Negotiate for extra time
the 60 days rule indicates only a 60-day grace period is granted after layoffs
So talk to your former company, a superior, or an HR person. Ask if they can give you an extension on the employment termination date, and they don’t have to pay you. You could approach it by explaining the situation of your H1B visa to the company and kindly request to extend the termination date the latest they could.
Here’s an example:
If you got laid off on Nov 1, and by request, the company granted you a 30-day non-pay extension before terminating your employment, then your employment officially would end on Nov 30. You could have a total of 90 days instead of the 60-day grace period, to look for new opportunities.
But your “true grace period” is determined by the lawyer of your new company if you got hired again. I worked with a company lawyer who only recognizes Nov 1 as the start of my unemployment(grace period), even tho I had a 30-day unpaid leave with the previous employer.
What I didn’t know before is that the company needs to write a certificate of the employment relationship, as critical proof of your employment; From experience, I didn't consider the employment relationship certificate at the time, and it was later that I found an external lawyer and prepared for the documents. There’s no guarantee the employment relationship certificate will be recognized by all corporate lawyers, but it’s another important material you should want to have.
2. Please note: Filing your H1B is also a part of the 60-day grace period
At least about 2 weeks of H1B filing should be counted in your grace period, including 1 week to file LCA and prepare materials at the same time.
there are companies that would say the process only takes a week and a half, but consult legally for your decisions.
At the same time, check how the HR department and lawyer of the new company view this matter.
3. Start job hunting
It’s time to get back on your feet and start job hunting. Try LinkedIn or other job platforms, it is also recommended to get LinkedIn premium to optimize the result, and change your job status to open to work. You could use Indeed and Handshake as well they are all trusted job platforms.
Make sure to filter the H1B sponsor companies in advance since your H1B transfer will require another company that sponsors you, and you make a note to ask about this matter and explain your situation the earlier the better when interviewing.
Last but not least, stay calm. There will always be a better job for you. You got this!
4. Prepare for job interviews
The job market is underperforming in many industries, and layoffs are happening everywhere and very often still, which means new roles are filling up faster than usual. That’s why you need to stand out from the competition.
Remember it’s crucial to follow up with the recruiter about the interview process, and get a hold of how soon the hiring manager needs to make a decision. I have a company that I like a lot but didn't follow up with the recruiter at all. I was solely working on the interview preparation. What happened was the recruiter told me at the last minute that the role was filled, all of sudden, my hard work went in vain.
I suggest you could ask what is the current stage of the hiring process, especially about the companies you like, just to have a better picture and arrange your priorities. In this unique situation, I would focus on getting an offer first. In this strategy, I got 2 offers in one month, and they turned out to be very decent opportunities.
5. Keep interviewing until you made the decision
It is recommended to continue the interviews until the offer is secured, I faced a slow decision-making process. One company felt hesitant because the time to file H1B petition is running low, and the other company rescinded the offer. So you should always keep interviewing until you’re ready to make the final decision and the other party is ready to legally bring you on board as well.
6. There’s always a Second Option: DAY 1 CPT UNIVERSITIES
Find a school that offers Day 1 CPT, and keep working legally.
First, find a school that is closer and has a low onsite frequency. If there is a problem with your H1b status, you can immediately convert your status to F1 and work with Day 1 CPT.
I’ve organized a checklist for resignation, feel free to download the checklist or reach out for CPT-related questions, Good luck to all!!
