New USCIS Rules for H-1B Workers After Layoffs

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Key Takeaways:

Laid-off H-1B visa holders can act within 60 days to extend their stay in the U.S. using specific USCIS options.
H-1B portability allows transitioning to new jobs smoothly by starting employment as soon as a petition is filed.
Filing non-frivolous applications can stop the accrual of unlawful presence, maintaining lawful status until the application is adjudicated.

What Options Do H-1B Visa Holders Have After Being Laid Off?

The recent wave of layoffs by major companies such as Google, Tesla, and Walmart has left many H-1B visa holders in a state of uncertainty. These immigrant workers, who contribute significantly to the tech industry and other sectors, now face the challenge of maintaining their authorized stay in the United States. The US Citizenship and Immigration Services (USCIS) has introduced new guidelines to help H-1B visa holders navigate this difficult period. This article outlines various options available for H-1B visa holders post-termination and provides practical advice for staying in the country beyond the 60-day grace period.

New USCIS Rules for H-1B Workers After Layoffs

Can H-1B Visa Holders Stay in the US Beyond 60 Days After Job Loss?

Yes, H-1B visa holders can stay in the United States beyond the initial 60-day grace period if they take specific actions. According to the USCIS guidelines, workers have several options to extend their stay.

Actions to Take Within the 60-Day Grace Period

File for a Change of Nonimmigrant Status
File an Adjustment of Status Application
Apply for a “Compelling Circumstances” Employment Authorization Document (EAD)
Become a Beneficiary of a Nonfrivolous Petition to Change Employer

Taking any of these actions within the grace period allows H-1B visa holders to stay in the United States for more than 60 days, even if they lose their previous nonimmigrant status. However, failing to act within this period may necessitate leaving the country within 60 days or by the end of the authorized validity period, whichever comes first.

What Is the Concept of H-1B Portability?

The concept of portability enables eligible H-1B nonimmigrants to transition smoothly to new employment opportunities. This flexibility allows individuals to begin working for a new employer as soon as a nonfrivolous H-1B petition is filed without waiting for its approval. This is particularly beneficial for laid-off workers who secure new job offers.

Can H-1B Visa Holders Apply for Adjustment of Status and EAD Simultaneously?

Yes, workers eligible to apply for immigrant visas through self-petitioning can submit their petitions while applying to adjust their status. During the processing of their adjustment applications, these workers can stay in the U.S. and acquire an Employment Authorization Document (EAD). For individuals who have been granted immigrant visa petitions based on employment and face significant challenges, a one-year EAD may be available.

How Can Laid-Off H-1B Workers Extend Their Stay in the United States?

When a non-immigrant worker’s employment ends, either voluntarily or involuntarily, they typically may take one of the following actions to remain in a period of authorized stay in the United States:

File an Application for a Change of Nonimmigrant Status: You can apply to change your status to another nonimmigrant category, such as becoming a dependent of a spouse (e.g., H-4, L-2), changing to student status (F-1), or visitor status (B-1/B-2). Note that while on a visitor visa, you cannot work in the US.
File an Application for Adjustment of Status: This is applicable if you qualify for permanent residence (green card).
File an Application for a “Compelling Circumstances” EAD: If you face significant circumstances that justify a one-year EAD, you can apply for this authorization.
You can check our detailed guide on How to Apply for Compelling Circumstances EAD here.
Become a Beneficiary of a Nonfrivolous Petition to Change Employer: If you find a new job and your new employer files a nonfrivolous H-1B petition on your behalf, you can start working for the new employer as soon as the petition is filed.
By taking any of these actions within the 60-day grace period, H-1B visa holders can extend their authorized stay in the United States beyond the initial 60 days.

What Really changed from previous rules? A closer look

The USCIS likely aims to address misconceptions and lack of awareness among nonimmigrant workers regarding their options after job loss. The update serves as a reminder that even after termination of employment, individuals are not immediately required to leave the U.S. and may have several avenues to explore to maintain their legal status and potentially continue working.

Previous Rule vs. Current Rule

Feature	Previous Rule	Current Rule
60-Day Grace Period	Existed for eligible nonimmigrant workers, allowing them to stay and seek new employment or change status within 60 days of job loss.	Remains unchanged, still providing a crucial window for action after employment termination.
Change of Status	Allowed individuals to apply for a different visa category permitting employment, subject to eligibility requirements.	No changes to the process or eligibility criteria.
Adjustment of Status	Permitted eligible individuals to apply for a Green Card, requiring a job offer and approved immigrant petition.	Remains the same, with no alterations to the application process or eligibility requirements.
Compelling Circumstances EAD	Existed as an option for individuals facing severe hardship due to job loss, allowing them to apply for work authorization while their adjustment of status application was pending.	Continues to be an option for eligible individuals, with no changes to the criteria or application process.
H-1B Portability	Allowed H-1B visa holders to change employers if the new employer filed a new H-1B petition on their behalf.	Remains unchanged, facilitating the transition to new employment opportunities for H-1B visa holders.
Clarity and Emphasis on Options	Information on options may have been less prominently highlighted, potentially leading to confusion among affected workers.	The update places a stronger emphasis on communicating available options to dispel misconceptions and encourage informed decision-making.

Key Differences between Previous Rules compared to the latest updated rules

What If H-1B Visa Holders Do Not Act Within 60 Days?

If no action is taken within the grace period, the worker and their dependents may be required to leave the United States within 60 days or by the end of their authorized validity period, whichever comes first. Departing the country does not prevent H-1B visa holders from looking for new employment opportunities. Once they secure a job offer, they can apply for a new H-1B visa and return to the United States to continue their work.

What Are the Employer Responsibilities for Laid-Off H-1B Visa Holders?

Employers have certain responsibilities towards laid-off H-1B workers. If H-1B or O workers need to leave the country, their employer (or petitioner for O workers) must pay for their transportation back to their home country. This ensures that the laid-off workers are not left stranded without any recourse.

Can H-1B Holders Apply for New Employers While Staying in the US?

Yes, H-1B nonimmigrants can start working for a new employer as soon as the new H-1B petition (Form I-129) is filed with the USCIS, without waiting for the petition to be approved. This allows for a smoother transition between jobs and helps workers maintain their authorized stay and employment status.

What Are the Implications of Filing a Non-Frivolous Application?

Filing a non-frivolous application to change status can “toll,” or stop, the accrual of unlawful presence until the application is adjudicated. This means that as long as the application is pending, the worker’s presence in the US is considered lawful, provided they did not work without authorization and maintained their status prior to the filing.

How Can Laid-Off H-1B Visa Holders Remain in the US?

Understanding these options is crucial for H-1B visa holders facing layoffs. The tech industry has witnessed substantial layoffs, with 237 tech companies laying off 58,499 employees in 2024 alone. This environment necessitates that H-1B workers know their rights and options to make informed decisions during these challenging times.

What Additional Resources Are Available for H-1B Visa Holders?

For more information on maintaining your status, filing petitions, and other essential guidelines, visit the official USCIS website. This site offers comprehensive resources and updates on immigration policies and procedures crucial for H-1B visa holders and other nonimmigrant workers.

Conclusion

The new guidelines from USCIS provide multiple avenues for H-1B visa holders who have been laid off to extend their stay in the United States. By taking timely actions such as filing for a change of nonimmigrant status, adjustment of status, or applying for an EAD, H-1B workers can navigate this challenging period more effectively. It’s essential to understand these options and act within the 60-day grace period to ensure you maintain your authorized stay in the country.

Learn Today:

Glossary of Immigration Terms

H-1B Visa: A non-immigrant visa that allows U.S. companies to employ foreign workers in specialty occupations, typically in fields requiring specialized knowledge such as IT, finance, engineering, and more.
US Citizenship and Immigration Services (USCIS): The federal agency responsible for overseeing the immigration process in the United States, including the processing of visa applications, petitions for naturalization, and guidelines for nonimmigrant workers.
60-Day Grace Period: A specific timeframe granted to H-1B visa holders who have been laid off to either find new employment and have a petition filed on their behalf or take other actions like changing their immigration status, before they must leave the United States.
Adjustment of Status: The process by which an eligible individual, already present in the United States, applies to become a lawful permanent resident (green card holder) without having to return to their home country for visa processing.
Employment Authorization Document (EAD): A document issued by USCIS that provides temporary authorization for certain noncitizens to work in the United States. It is often applied for by individuals who have pending immigration applications that allow them to legally work while their case is adjudicated.

These definitions help clarify key terms related to the options available for H-1B visa holders, especially in the context of being laid off and the actions they can take to maintain their status in the U.S.

This Article In A Nutshell:

The recent layoffs at major companies have affected H-1B visa holders. USCIS guidelines offer options like changing status or applying for an EAD to extend stay post-termination. Acting within 60 days is crucial, ensuring continuity in legal status. Understanding and utilizing these choices is vital for navigating this challenging time.
— By VisaVerge.com