USCIS on December 19, 2022 came out with a press release on options for H1b and other non-immigrant worker. Here is a summary of that guidance.
In essence: This press release serves as a guide for nonimmigrant workers (specifically in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications) who have experienced job loss, either voluntarily or involuntarily. It outlines the various options they have for remaining in the United States legally after their employment ends. It is meant to provide workers with an understanding of their rights and options. Here we discuss some of the options laid out by USCIS and we also clarify certain situations.
Key Points and Options:
- 60-Day Grace Period:
- Workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN status (and their dependents) are generally allowed a discretionary grace period of up to 60 days after their employment ends. This period is counted consecutively, starting from the termination date. It cannot exceed the remaining authorized validity period.
- During this grace period, the worker can:
- Find a new employer to file a petition on their behalf (e.g., a new H-1B petition for an H-1B worker). I can say based on experience that the new employer should file the Labor Condition Application(LCA) at least by 50th day since it takes a week for approval and it gives a buffer of 3 days to file the H1b transfer petition. If you don’t have a LCA filed latest by 52nd day file then plan to file for a change of status to B-2.
- Apply to change their status to a different nonimmigrant status (e.g., B-2 visitor status or a dependent status like H-4 or L-2). You have the option to file this online and our law firm can help with this online filing.
- Apply for adjustment of status (if they are eligible to apply for a green card).
- Get rehired by the same H1b employer. In such a case a new H1b will be required if there is a material change to H1b terms and conditions. If the beneficiary is being rehired to the same position then no new H1b petition is required.
- If the worker can’t find a new job or file for a change of status within the 60-day grace period, they must leave the U.S.
- H-1B Portability (Working for a New Employer):
- If the worker is in H-1B status, they can start working for a new employer as soon as the new employer properly files a new H-1B petition with USCIS. They don’t have to wait for the petition to be approved.
- “Porting” (Immigrant Petition/Adjustment of Status):
- If the worker has a pending I-485 application (to adjust status to a green card) that has been pending for at least 180 days, and they also have an approved I-140 immigrant visa petition, they can “port” (transfer) the I-140 to a new job.
- The new job must be in the same or a similar occupational classification as the job in the approved I-140.
- Change of Nonimmigrant Status:
- Workers can use the 60-day grace period to apply to change to a different nonimmigrant status. Common options include:
- Dependent Status: Changing to H-4 (dependent of an H-1B worker) or L-2 (dependent of an L-1 worker). Spouses in E-1, E-2, E-3, or L-1 status may be eligible for employment authorization. Some H-4 spouses may also be eligible for work authorization.
- Student Status: Changing to F-1 student status. Note that F-1 students have restrictions on employment. Note that one can start attending school only after the F-1 is approved. These days premium processing is available for change of status to F-1. You have to time the filing in such a way that you get the F-1 approval prior to start of the semester.
- Visitor Status: Changing to B-1 (business visitor) or B-2 (tourist) status. Note that B-1 and B-2 visitors are generally not allowed to work in the U.S.
- Important Note: Filing a timely, “non-frivolous” (legitimate) application to change status stops the accrual of “unlawful presence.” This means that if USCIS denies your application, you will only begin accumulating unlawful presence from the date of the denial.
- Workers can use the 60-day grace period to apply to change to a different nonimmigrant status. Common options include:
- Change of Status and Employer (Different Status):
- Workers can seek a new employer willing to sponsor them for a different nonimmigrant status. For example, an L-1 worker might find a job that qualifies for TN status (for Canadians or Mexicans) or E-3 status (for Australians) or H-1B.
- Filing a change of status application does not automatically give you permission to work in the new position while the application is pending. You must have the appropriate employment authorization.
- Adjustment of Status (Self-Petitioning):
- Some workers might be eligible to self-petition for an immigrant visa (green card), meaning they don’t need an employer to sponsor them. Examples include:
- EB-1 “Extraordinary Ability”
- EB-2 “National Interest Waiver”
- EB-5 “Immigrant Investor”
- If eligible, they can file the immigrant visa petition (I-140) concurrently with their application to adjust status (I-485).
- Some workers might be eligible to self-petition for an immigrant visa (green card), meaning they don’t need an employer to sponsor them. Examples include:
- Compelling Circumstances EAD (Employment Authorization Document):
- If a worker has an approved I-140 (meaning they are on track for a green card) but an immigrant visa is not yet available to them, and they face “compelling circumstances,” they may be eligible for a one-year Employment Authorization Document (EAD).
- “Compelling circumstances” are evaluated on a case-by-case basis. The EAD is a discretionary measure to help people avoid having to leave the U.S. abruptly.
- Expedited Processing (“Expedite Criteria”):
- USCIS may expedite the processing of certain applications in emergency situations.
- One example is an application to change to a dependent status (like H-4 or L-2) if the dependent is eligible for employment authorization and needs it to prevent “severe financial loss.”
- Departure from the U.S.:
- The worker can choose to leave the U.S.
- For H-1B and O-1 workers who are involuntarily terminated, the employer is required to pay the “reasonable costs of transportation” back to the worker’s “last place of foreign residence.”
- After leaving, the worker can seek U.S. employment and return to the U.S. in H-1B status (if they have time remaining on their original H-1B). They can also apply for a visa in another category for which they are eligible.
In short, this USCIS guidance gives nonimmigrant workers who have lost their jobs a rundown of their options for remaining in the United States legally. These options include finding a new job, changing to a different visa status, applying for a green card, or, in some cases, obtaining temporary work authorization based on compelling circumstances. It also outlines the employer’s responsibility to pay for the return transportation for terminated H-1B and O-1 workers. It is crucial to carefully review eligibility requirements for each option and consult with an immigration attorney.
About the Author
Discover more from Immigration Analytics
Subscribe to get the latest posts sent to your email.
