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Quick Introduction: In the constantly changing landscape of the American job market, layoffs unfortunately affect many workers, including H-1B visa holders. Compared to the average American employee, H-1B visa holders are more likely to be laid off due to the instability of their visa term (which can last a maximum of six years with required extension application). If you are currently holding an OPT, H1B, or H1B visa and are on the point of transitioning to a green card after achieving the I-140 approval stage, you know that the journey has been a challenging one and that you do not want to risk it. However, if you are an H-1B visa holder who has been laid off during or after receiving I-140 approval, you may need guidance on what to do next. |
2023 H1B Layoff Data
Recently, a wave of H1B visa holders has been getting laid off in the United States. Starting in May 2022, a wave of layoffs has hit several technology giants like Google, Microsoft, Amazon, and Meta. After a brief pause in September, the layoffs have resumed in recent months, affecting thousands of employees. Many elite professionals who were once career winners now face uncertainty and fear for their future.
The Largest Tech Layoffs
The number of layoffs during the current crisis is unprecedented, surpassing even those during the 20-year epidemic, the Internet bubble of 2000, and the financial crisis 2008.
In 2022, 1,040 tech companies laid off 160,000 workers. In 2023, 200 companies laid off 60,000 people in the first month alone.
Tech layoffs in 2022 - 2023
The first group to be affected are international employees using H1B work visas. For them, their ability to stay in the U.S. is tied to their H1B status.
After the recent layoffs, the affected employees have been granted a 60-day Grace Period. However, many of them, who lack knowledge about the U.S. immigration system, fear that if they fail to secure a new job within 60 days, they might have to leave the country and return to their home country.
So, In the following sections. I will share a practical strategy to help those who have been laid off from H1B visas to save their identity and life.
If you have recently lost your job, or if you are anxious about losing your job, or if you are studying overseas and worried about the possibility of being laid off, it is crucial that you read this guide thoroughly. Refine the main points, and save and bookmark it for future reference. It will be helpful on a rainy day.
H1B Layoffs & Related Regulations
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 must seek another employer that sponsors an H1B to maintain an H1B status.
The 60 Days Rules
Employees who were laid off have 60 days to seek another H1B sponsor employer,
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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.
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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.
The 90 Days Rules
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When you hold an H-1B status, you can apply for a change of status petition with USCIS to switch to a different nonimmigrant visa. However, it's important to remember the "90-day rule" when you change from one nonimmigrant status to another within the US. This rule implies that if you file for a change of status within 90 days of entering the US, your request will be denied. So, it's very important to make sure you are fully aware of all the requirements and restrictions before making any changes.
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The 90-day rule states that if a person enters the U.S. on a nonimmigrant visa and files an application to change their status to another nonimmigrant visa within 90 days, they are considered to have made a "presumption of misrepresentation" at the time of entry. This means that the application for a change of status will most likely be denied. Therefore, it's crucial for those needing to change their status to plan and closely track the timeline of their application to avoid any confusion and potential issues.
Three Different Layoff Phases and Scenarios
Scenario 1 | Laid off or changed jobs during OPT transitioning to H1B
During the OPT period, you have lots of freedom to operate with. There is a 90-day unemployment period during which you can change jobs freely (as long as they are related to your major).
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If you are laid off, actively search for new employment and report it to your school once you find a new employer.
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As for calculating and reporting the unemployment period, USCIS knows what to do. Since your school issues your OPT I-20, USCIS will listen to your school. You must report any changes in employment status to your school during the OPT period, and the school will submit a report to USCIS based on your information.
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You do not need to provide an offer letter or special proof when reporting to the school. You can fill in the school system's employment start and end dates. Since OPT can be an internship, especially in the first year, and even an unpaid one, most schools will trust you and report to USCIS accordingly.
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When it comes to STEM OPT Extension, it is more complicated because you need to submit the I-983 form to your school. The I-983 form requires you to provide details about your job content and other specifics, but this is only for the school's reference. When the school reports to USCIS, they will only report one status: "We have checked the employment status of this student and it complies with the regulations." USCIS needs to know what specific work you did or need to know.
At the transition from your OPT to H1B, given the recent wave of layoffs, this is a trickier situation, but it is not impossible. The key is to wait until October 1st, when H1B takes effect, before taking action.
The H1B application is usually submitted in March, and the results are usually available by April 1st. Then, there is the process of filing and responding to RFEs. The H1B will automatically take effect on October 1st if everything is approved.
If:
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The company submitted your application, and you were selected, but if you were laid off or left before the May filing deadline, the H-1b selection won’t help; the company will not file for you.
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If you were laid off or left during the review period after filing, your previous company may revoke your H1B support, and the situation will be the same as above.
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If your H1B application is approved, usually around July or August, stay on your own. In the unfortunate event of termination, a more compassionate company may allow you to take FLAM or unpaid leave. You can negotiate this as part of your severance package with HR. If you can wait until October 1st, your H1B will automatically become effective, and you can then use an H1B transfer to find a new job without going through the lottery again. However, there is some risk involved if you transfer immediately after October 1st because you will need to provide evidence, such as pay stubs, to USCIS proving that you maintained legal H-1B status in your previous job.
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Is it possible for an H1B transfer to be denied? Yes, there is a possibility. If your transfer is denied, it is the same as being denied for an initial H1B application, and you will need to arrange to leave the country as soon as possible. I would recommend getting approval for an H1B transfer before resigning from your current job to prevent this situation.
*📍Tips: During OPT and OPT Extension, your employment start and end dates are not strictly monitored, and you can generally fill them in by yourself. The only problem is if you encounter any issues in the future, such as applying for H1B or applying for a green card, and encounter a strict officer who questions whether you were legal during your time in the US, you need to be able to prove that your OPT usage was legal and reasonable. How to prove it? Keep your offer letter and pay stubs.
Scenario 2 | Laid off or change jobs while on H-1B
During the 6-year H1B period, you are relatively free to switch jobs anytime, as long as the new employer accepts an H1B transfer. However, some companies do not accept H1B transfers, so it is important to clarify this when looking for a new job.
If you are laid off, you have a 60-day grace period to find a new job. You can negotiate with HR to determine the final day of your employment. If your employer is more compassionate, you can take at least 1-2 months of unpaid leave before receiving your final month's salary. This provides an additional 30-60 days to find a new job. The 60-day grace period starts from the time you leave the company payroll. If your company is not compassionate, try to negotiate for FLAM.
If you cannot find a job after 60 days but want to stay in the US, you can switch to F1 status. It is recommended to choose a CPT school as they are easier to apply to, have more windows, and issue i-20s faster. You don't need to be a serious student; you'll be able to enroll in an accredited university where USCIS won't arouse concerns for your F1 status. Once you find a job, you can switch back to H1B status without going through the lottery again.
Scenario 3 | Laid off on H1B while already submitted green card application
In the ever-evolving landscape of the American job market, layoffs are unfortunately a reality, and H-1B workers are not immune. In comparison, H-1B visa holders tend to get laid off more easily compared to average American employees due to the instability of the visa term (maximum 6 years under required extension application) and higher cost of employment, from H-1B petition to Green Card application from EB-1, EB-2, etc.
Hopefully, by this time, you have already gotten your green card. If not, at least you should have submitted your PERM and be waiting for the processing time.
If your H1B visa has expired after a 6-year effective period and your employer is helping you with your green card, the basic sequence is PERM ➔ I-40 ➔ I-485.
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PERM applications can usually be approved in about 6 months (currently, the immigration office is taking about half a year to process). Still, your application will be invalidated if you are laid off or left during the process. You will have to start over if you find a new job.
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Once you have obtained your PERM, your employer must help you submit an I-140 application. Both PERM and I-140 applications are tied to your employer. Your application will also be invalidated if you are laid off or left during this process. Your new employer cannot continue your I-140 application, so you must start with a new PERM application.
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After your I-140 approval, you can lock in your priority date (PD). If you change jobs now, you must reapply for PERM, but your PD can be retained.
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If you are an H-1B visa holder and your I-140 has been approved but cannot submit your I-485 application, you can apply for an H1B extension, which can be extended for up to 3 years. If you change jobs or are terminated while holding an extended H1B visa, you can transfer it, but you will have to start over with your green card application.
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If your I-140 is approved for less than 180 days, your employer can revoke it, which means your H1B extension will be invalid.
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If you have already submitted your I-485 and changed jobs, your new job's duties, salary, and other details must be similar to your previous job. Your new employer must also submit an I-485 J form to the immigration office to prove that your new job is similar to your previous job.
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If you meet these conditions and the immigration office has received your I-485 application for more than 180 days, you do not need to repeat the process of applying for an employment-based green card, and your green card application will not be affected by changing employers.
If your employer agrees to help you with your green card, start the process and try not to change jobs or get laid off until you submit your I-485. Otherwise, it is easy to find yourself in a situation where your H1B visa has expired, your extension has not been approved, and you have not obtained your green card. Once you submit your I-485, the situation is more flexible.
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If you have lost your job, whether it’s during H-1b, F-1, or Perm, and still want to stay in the U.S., you can always go back to school on CPT and look for work.
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Another option is to leave the U.S. for a year and find a new employer in the U.S. If your new employer agrees to submit an I-129 application and it is approved, you can return and work on an H1B visa for 3 years, which can be renewed for another 3 years without having to reapply.
As for how to deal with the situation where your status is lost due to layoffs, I have for you here the options that I can think of. If you have any other interesting or tragic cases to share, please share them below, and we can all help you come up with a solution.
Also, if you want a deeper dive into being laid off after you file your green card application, please click the following link for more information:
Three tips that will help you survive your H1B layoff periods
1. HR Negotiation
The 60-day rule, as we mentioned above, indicates that 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 get hired again. I worked with a company lawyer who only recognizes Nov 1 as the start of my unemployment(grace period), even though I had a 30-day unpaid leave with the previous employer.
I didn’t know before 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 the documents. There’s no guarantee that all corporate lawyers will recognize the employment relationship certificate, but it’s another important material you should want to have.
Please note: Filing your H1B is also a part of the 60-day grace period
At least 2 weeks of H1B filing should be counted in your grace period, including 1 week to file LCA and prepare materials simultaneously.
Some companies 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.
2. Start job hunting
It’s time to get back on your feet and start job hunting. Try LinkedIn or other job platforms; getting LinkedIn Premium to optimize the result and change your job status to open to work is also recommended. 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!
Prepare for job interviews
The job market is underperforming in many industries, and layoffs are happening everywhere and 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 know how soon the hiring manager needs to decide. I have a company I like a lot, but I didn't follow up with the recruiter. I was solely working on the interview preparation. What happened was the recruiter told me at the last minute that the role was filled, and all of a sudden, my hard work went in vain.
I would suggest you ask what is the current stage of the hiring process, especially about the companies you like, to have a better picture and set your priorities. In this unique situation, I would focus on getting an offer first. In this strategy, I got 2 offers in one month, which were decent opportunities.
Keep interviewing until you make 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 an H1B petition needed to be higher, 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 bring you on board as well legally.
3. 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 closer school with 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!!
Conclusion
Navigating through the American job scene can be like sailing through a storm, especially for H-1B visa holders who often face the rough winds of layoffs. These visa holders find themselves on shakier ground compared to others due to extra costs and the ticking clock of visa deadlines. The journey towards securing a Green Card, like a ticket to calmer waters, is filled with hope and hurdles, particularly when reaching the significant I-140 approval stage.
But what happens if a sudden layoff comes knocking on your door, especially after reaching this crucial milestone? It’s like seeing a huge wave coming at you just when you thought the storm was passing. This article aims to be a compass in such stormy situations, shedding light on the steps one can take to keep their Green Card dreams alive even when the job boat rocks. With the right information and action, H-1B visa holders can navigate the rough patch of layoffs, finding their way back toward a stable career in America. Even when faced with job loss, knowing your options can help turn the tide and continue the journey toward achieving the American dream.
“The above content is not legal advice, but rather a sharing of knowledge and experience. If you need legal advice, please seek the advice of a professional lawyer”
