Summary: Layoff During OPT/H1B/PERM and Solutions

| Laid off or change jobs during my OPT period?

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).

• If you are laid off, just actively search for new employment and report it to your school once you find a new employer.

• As for calculating and reporting the unemployment period, USCIS knows what to do. Since your OPT I-20 is issued by your school, USCIS will listen to your school. You are required to 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.

• When reporting to the school, you do not need to provide an offer letter or special proof. You can simply 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.

• 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, which is "We have checked the employment status of this student and it complies with the regulations". USCIS does not know what specific work you did or need to know.

*📍Tips: During OPT and OPT Extension, the start and end dates of your employment 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.

| Laid off or change jobs before H1B takes effect after being selected in the lottery during OPT?

This is a trickier situation, but it is not impossible given the recent wave of layoffs. The key is to wait until October 1st when H1B takes effect before taking any 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. If everything is approved, the H1B will automatically take effect on October 1st.

If:

• 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.

• 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.

• If your H1B application is approved, usually around July or August, do not leave 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.

• 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. It is recommended to get approval for an H1B transfer before resigning from your current job to prevent this situation.

| Laid off or change jobs during 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 still 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 do not have to be a serious student, just enroll in a legitimate school where USCIS will not question your F1 status. Once you find a job, you can switch back to H1B status without going through the lottery again.

| Laid off or change jobs during the green card application period?

Hopefully, by this time you have already obtained 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 6-year effective period and your employer is helping you with your green card, the basic sequence is PERM - I40 - 485.

• PERM applications can usually be approved in about 6 months (currently, the immigration office is taking about half a year to process), but if you are laid off or leave during the process, your application will be invalidated. You will have to start over if you find a new job

• 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. If you are laid off or leave during this process, your application will also be invalidated. Your new employer cannot continue your I-140 application, so you will have to start with a new PERM application

• After your I-140 is approved, you can lock in your priority date (PD). If you change jobs at this time, you will need to reapply for PERM, but your PD can be retained

• If you are an H-1B visa holder and your I-140 has been approved but you are unable to 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

• Oh, and if your I-140 is approved for less than 180 days, your employer can revoke it, which means that your H1B extension will be invalid

• If you have already submitted your I-485, and you change 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 or the same as your previous job

• 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

Basically, 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 have submitted 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 have submitted your I-485, the situation is a bit more flexible.

1. 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.

2. 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, these are 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.

Interested in Day 1 CPT or having status issues, CPTDog’s consultants can help!