Layoffs and Options for Terminated Nonimmigrant Workers and Options and Responsibilities for Their Employers

Layoffs and termination of employment is almost always a difficult process for both the employer and the impacted employee.   This is especially true for workers who are foreign nationals whose nonimmigrant status in the U.S. is likely to be impacted by the termination of employment such as H-1B, TN, and others.   This article seeks to discuss some common options for impacted foreign workers and also some options and responsibilities for the employers.

60-day Post-Termination Grace Period

Workers who are in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents) are considered as having maintained status following the termination of employment for up to 60 days (or until the authorized validity period, whichever comes first – see example below).

Example:   Worker A has H-1B petition with validity until July 30, 2023.   Worker A’s employment is terminated with effect as of June 20, 2023.   Worker A’s grace period ends on July 30, 2023 even though this is shorter than 60 days.

It is important to note that the 60-day grace period begins from the date of termination regardless of whether or when the employer notifies USCIS (in the case of H-1B workers).

During this grace period workers can remain in the U.S. if they find a new employer who timely files a petition with a request to extend stay — for example, a H-1B transfer filed by a new employer.   Similarly, workers can remain in the U.S. in a period of authorized stay if they timely file an application to change their status to another nonimmigrant status (such as B-2) or to adjust their status (I-485, if eligible to do so).

At the end of the 60-day grace period, if a worker has not filed an application to extend, change or adjust status, they are generally considered to be out of status and are expected to have left the U.S. before the expiration of the 60-day grace period.

H-1B Transfer and I-485 AC21 Portability Rules

The H-1B portability rules allow an H-1B employee to begin working for a new employer as soon as the new employer files a timely H-1B petition with USCIS and without having to wait for the transfer petition to be approved.

Timely means that the H-1B transfer petition must be filed while the H-1B worker is in the US and in valid status (definitely before the 60-day grace period ends). It is important to understand that it often takes, at a minimum, 10-14 days to prepare and submit an H-1B petition with USCIS.

Applicants with I-485 adjustment of status applications which have been pending for more than 180 days based on an approved I-140 immigrant petition have the ability to “port” their entire green card process to a new employer in the same or similar occupation.   See our detailed article on AC21 porting and feel free to contact us if our office can be of assistance.   Phone consultations can be booked directly via our site.

Change of Status

Terminated foreign workers can apply during the 60-day grace period to change their status.   If the terminated worker’s spouse is in the U.S. on an independent status (H-1B, L-1, TN, E, F-1, J-1) then it may be possible to switch to a dependent status.  Some of these classifications allow employment – either under a separate application (such as H-4) or incident to status (L-2, E-2).

Applying for a B-2 visitor status is also an option to be able to stay in the U.S. for a bit longer although it comes with certain important drawbacks.   A B-2 application generally can only request six months of stay and often, due to long USCIS processing times, a decision does not come by the time the requested six-month period has already ended.    This option has to be considered and timed very carefully to avoid a “surprise” of approval with an already-passed validity end date.

Some workers may elect to go to school and enroll in a degree program, making them eligible for F-1 change of status.    The F-1 visa has specific timing requirements — including getting admission into an upcoming academic term with specific timelines for application and approval in relation to the academic term’s start date.

While not very common, a terminated worker may be eligible to apply for a different work visa with a different employer.     For example, a terminated L-1 visa employee who is a national of Canada may not be able to “transfer” to another L-1 employer but may be eligible to seek employment and change of status under the TN classification.

Adjustment of Status and I-140 EAD for Compelling Circumstances

As noted above, workers with a pending I-485 adjustment of status application are generally eligible to remain in the US and obtain an independent work authorization (EAD).     It may be possible for impacted workers to file a concurrent self-sponsored I-140 immigrant petition (for example, under EB-1 Extraordinary Ability or EB-2 National Interest Waiver) and I-485 adjustment of status application and, in the case of employment-based I-485 applications, USCIS allows for up to 180-day grace period of being without status (see this article for more details) at the time of I-485 filing.

Workers who have an approved I-140 but, due to per-country visa number limitations, have been unable to file I-485 may be eligible to obtain a one-year EAD if they can face “compelling circumstances.”

Our experience shows that it is very hard to get this benefit:  a compelling circumstances EAD is a discretionary EAD intended to prevent applicants from abruptly leaving the U.S.    Our recent experience shows USCIS holds a high standard of what is a “compelling circumstance”.  Workers who obtain and begin working on a “compelling circumstances EAD” will no longer be maintaining nonimmigrant status but will be considered to be in a period of authorized stay and will not accrue unlawful presence in the United States while the EAD is valid (generally, 1 year).   However, they will likely need to depart the U.S. and reenter using a nonimmigrant visa afterwards.  More on USCIS’s page.

See our special alert on I-140 EAD based on compelling circumstances.

Pending Applications and Timing Considerations

The filing of a timely and non-frivolous application to extend, change or adjust status will stop the applicant from accruing unlawful presence until the application is adjudicated (but watch out for the requested validity term coming  up first).    If the application is ultimately approved, then the individual’s status is changed and is considered to have been in a period of authorized presence the entire time the application was pending.  If the application is denied, then the individual starts to accrue unlawful presence the day after the denial decision.   See our alert and also USCIS’s resources on this topic.

Applications to change status to different classifications may have additional timing considerations.   Specifically, B-2 applications generally can request up to six months but due to USCIS processing times of well over six months, applicants often find themselves running out of the requested six-month period before they even know the outcome of the application.

Similarly, F-1 visa applications have specific requirements about timing of the applications.  For example, an F-1 status generally cannot be granted more than 30 days prior to the program start date noted on the I-20 form; as a result, the F-1 change of status applications should be prepared strategically and carefully.

Unfortunately, long USCIS processing times are likely to continue over the coming months.    USCIS has a premium processing option which guarantees a decision in 15 calendar days for an additional filing fee but this option is only available to certain I-129 petitions filed by employers.   Eligible classifications are H-1B, L-1, TN, O-1, E (see full list and details).    There IS premium processing for I-539 change of status application seeking F-1 status (details) but there is NO premium processing option at this time for change of status applications seeking B-1 or B-2 status.    Even if premium processing is not available, certain cases may be eligible to request expedited consideration if they meet certain criteria.

Employer Obligations and Responsibilities

Termination of H-1B, H-1B1, O-1, and E-3 employees requires that the employer give a written notice to the employee, notify USCIS in writing and offer to pay the cost of reasonable transportation to the employee’s last country of residence.

There are no specific notification or home transportation requirements for TN, L-1, E-1/E-2 workers.

Employers who have filed an I-140 immigrant petition may chose (but are not required) to withdraw the approved I-140 petition within the first 180 days past approval.   This withdrawal has important consequences — an I-140 petition withdrawn by the employer within the 180 days after approval will mean that the worker will not be able to rely on the I-140 to secure H-1B extensions beyond the six-year H-1B limit (but they may be able to retain the priority date).

How Can Our Office Help?  All petitions filed by our office automatically generally include, for no additional charge, the necessary compliance work to send the required revocation paperwork to USCIS.   Our office generally does not handle revocations for petitions not filed by us but we are happy to provide guidance, if needed.

Conclusion

The options and solutions outlined in this article apply only to a certain set of applicants and circumstances but we are hopeful that they provide helpful guidance not only to them but also to everyone else who may be considering their options post-termination of employment.

Please do not hesitate to contact us if we can be of any help with a specific case filing or with a phone consultation.    Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.