There have been a lot of companies announcing layoffs in recent weeks, especially in the tech sector. That is going to be especially impactful to people who are in the U.S. on a work visa. The tech sector tends to have a lot of skilled workers on visas, and they may be wondering what happens if they lose their job.
There are a lot of people who work in the U.S. as immigrants. There are employment-based nonimmigrant and immigrant visa classifications. If someone has the right combination of work experience, education, and skills, they might also be able to live and work permanently in the U.S. through an employment-based immigration visa.
The following are things to know about losing your job on a work visa and what the implications can be.
The H-1B Visa
One of the specific types of visas that are relevant to this conversation is the H-1B visa. The H-1B visa is a nonimmigrant work visa that lets U.S. employers hire foreign workers for jobs that are specialized and require a bachelor’s degree or the equivalent. This can include jobs in fields like IT, engineering, and finance, as examples.
To be eligible for an H-1B visa in the first place, a person needs a job offer from an employer for a role requiring specialized knowledge and proof of a bachelor’s degree or the equivalent in the field.
The employer also has to show there’s a lack of qualified applicants in the U.S. for the role.
Before you can come to the U.S. under the H-1B classification and start working, you have to register with U.S. Citizenship and Immigration Services (USCIS), and then you have to be selected to apply.
There’s a big demand for visas, so there’s a cap on how many are issued each year.
If you have a master’s degree from an institution in the U.S., there are an additional 20,000 visas available past the 65,000 caps per fiscal year.
If You Lose Your Job
If you’re in the U.S. and you lose your job while you’re on the H-1B visa, you’re immediately considered out of status in the U.S.
The reason that this happens is that if you’re an H-1B visa holder, it requires that you are actively employed to keep your lawful status. The same is true for the majority of other work visas, including the L, O, and H categories.
If an employer lays you off, your employer is required to file a withdrawal of your original work visa petition with the USCIS. That lets the government know that you’re out of status as a visa holder.
While you are out of status, it doesn’t mean you have to immediately leave the U.S. necessarily or that you’re right away at risk of deportation.
There Is a Grace Period
If you lose your sponsored employment because of being laid off, you’ll usually have a 60-day grace period. During this time, visa holders are expected to find new employment, after which they would have to leave the country if they aren’t able to do so.
The USCIS guidelines state that your 60-day window is usually counted from the last day you did actually work and not the last time you were paid.
If you’re an immigrant worker who’s laid off, you’ll probably opt to stay in the U.S. during this window or until your I-94 expiration date, whichever is first. Then you would be using this time to try and seek other employment.
What Options Are Available
Everyone is going to have a different situation, but you typically have three broad options if you lose your job on a work visa.
First, you can decide to leave the U.S., which isn’t the common option.
If you decide to leave the U.S., speak to your company about relocation and travel expenses. If your sponsoring employee terminates you as an H-1B visa holder, the employer has to offer to pay your flight costs to return to your home country or wherever your last country of residence was.
There are also change of status options, and these are available if you didn’t have six months or more of unlawful presence.
If you choose to find new employment, there are a couple of concepts to know about. The first is portability, and the second is the 60-day rule.
Under portability rules, a work visa holder can stay in the U.S. after the 60-day window or past their I-94 expiration if they can find new employment. If you find a new employer who will sponsor you within 60 days or before your I-94 expiration, then the new employer can file what’s called a Labor Condition Application or LCA with the Department of Labor on your behalf.
Once the LCA is certified, the sponsoring employer can file a Form I-129m Petition for a Nonimmigrant Worker. This is filed with the USCIS and continues your process.
After this petition is approved, the H-1B visa will transfer to your new employer, which is known as porting.
This portability process makes it simpler to change employers since you aren’t applying for a completely new visa.
Your employment and application search needs to begin before the end of your grace period.
Your LCA has to get approval before the end of your grace period. Otherwise, you’re risking complications and lapses in status.
If your change of employer petition is approved, you can start working.
Another option is to apply for a different type of visa, such as a B-1/B-2 tourist visa. There are also student visas and the H-4 dependent spouse visa.
If you’re a Mexican or Canadian national, you can apply for a TN visa, which would also allow you to work in the U.S. with options to renew.
O visas are an option for professionals who demonstrate extraordinary ability.
These are just a few of the immigration pathways available if you lose your employment, and there are routes where you can stay in the U.S. even if you’re laid off and you hold an employment-based visa, but you have to be proactive to figure out what’s right for you to avoid lapses in status.
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