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 compare 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.
If you're an H-1B holder and have got to the I-140 approval stage, it was quite a journey that you don’t want to take risks with. H-1B visa holders who's been laid off post I-140 approval, what should you do? This article aims to provide some insights on the various avenues available to individuals in such situations.
Among the very first things you would ask is “How a layoff impacts an approved I-140?”.
It depends on the duration of approval and the steps taken by the company post-layoff. One thing to note is that once your I-140 is approved, your priority date is locked in. This date remains secure unless the I-140 is revoked due to fraud or misrepresentation and any other reasons.
It is still likely that an employer withdraws your I-140 application once you’re let go. Your rights within the withdrewed Green Card application are listed below:
| I-140 Approved For | Remaining Benefits |
|---|---|
| More than 180 days | Extend H-1B status beyond the usual six-year limit and H-4 EAD Eligibility |
| Less than or equals to 180 days | H-1B extension eligibility with a maximum duration of 6 years |
**If your I-140 was withdrew from a recent layoff and your approval date was within the last 6 month, your new employer needs to restart the I-140 application and PERM in order to sponsor your employment based green card.
The I-140, is the "Immigrant Petition for Alien Worker" application. It is a form used by the USCIS during the employment based green card application.
The I-140 is used by employers in the US to petition on behalf of a foreign worker to become a permanent resident (obtain a green card) based on employment.
Priority Date: When the I-140 is approved, the foreign worker is given a "priority date." This date is crucial in the green card process, as it determines the worker's place in line for receiving a green card. Due to annual limits on the number of green cards issued in certain categories and from certain countries, there can be waiting periods, and the priority date helps determine when a person can move forward in the process.
Once the I-140 is approved, and when the priority date becomes current, the foreign worker can apply to adjust their status to that of a permanent resident if they are in the U.S. If they are outside the U.S., they can apply for an immigrant visa at a U.S. consulate.
Benefits for H-1B Holders: An approved I-140 can provide certain benefits for H-1B visa holders, such as the ability to extend their H-1B status beyond the usual six-year limit.
Layoffs are tough, more so for those on an H-1B visa, because you have to find and job and successfully transfer your H-1B visa to a new employer, and do all of that within 60 days. During the 60 days grace period, you can 1)look for a new H-1B employer, 2)switch to another non-immigrant visa, 3)apply for an emergency EAD, 4) leave the U.S.
If you find a new employer willing to sponsor your H-1B visa within the 60-day grace period, the new employer can initiate a transfer. This process is similar to the typical H-1B procedure, only that you don’t need to enter the H-1B lottery again.
60 days seems so little when you’re counting job research, rounds of interviews and even a H-1B transfer application, therefore it is important to stay prepared.
For H-1B holders laid off post I-140 approval, another viable option is to delve into other non-immigrant visa categories that might allow them to legally stay in the U.S. And with I-539 Change of Status Application, applicants could carry out the process without leaving the country and re-enter.
Change of Status to O-1. If you’re working or studying in the art, science research or film industry, you might be eligible to apply for O-1 visa. It is a visa designed for talents with art or science achievements and who’s recognized within their industry through referral, awards and research publications. However, not everyone qualifies for an O-1, make sure you talk to an immigration lawyer about your eligibility.
Change of Status to F-1. H-1B employees usually consider changing to F-1 during career changes, because it’s an opportunity to further their education. Some universities have Day-1 CPT programs where internship and work experience is built in as a curriculum requirement. This such way you can enroll in Day 1 CPT as a student while still have time after the H-1B grace period to look for jobs and work full-time when you find a job. Note that not all Day 1 CPT universities have the national level accreditations, please carefully review the universities before applying or consult with a professional for free.
*Starting Fall 2023, Applicants can expedite change of status to F-1 application through USCIS’s premium processing, that guarantees result within a month. Applicants could also do premium processing in H-1B applications, but not cannot do PP in O-1 and B applications.
Change of Status to B Visa. H-1B temporary work visa holders can work in the U.S. for an initial period of 3 years, with the opportunity to extend for an additional 3 years, totaling a maximum of 6 years. After the grace period following unemployment or at the end of the 6-year term, one option is to apply to change their status to a tourist visa (B visa) while within the U.S. This allows them to remain in the country and provides more time to seek employment. During the application process, they can legally stay in the U.S. with a status known as "COS Pending." Once they find a job, they can abandon the application and switch back to H-1B. We do not recommend this method, and do not post any legal advise in the article, it’s a known method some H-1B visa holders had carried out.
Another potential avenue for H-1B holders laid off post I-140 approval is applying for an emergency Compelling Circumstances Employment Authorization Document (EAD). Having an approved Form I-140 petition (a step in the green card process) is a requirement.
This provision is meant for individuals whose employment has been significantly impacted due to extraordinary circumstances, such as serious illness or injury, disputes with employers, adverse effects on employer operations, or other major hardships.
You could learn more about Compelling Circumstances EAD here.
Interested in Day 1 CPT or having status issues, CPTDog’s consultants can help!