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When layoffs become a reality, what options do H-1B visa holders have? - II

Last week, we began discussing how the anxiety engendered by an employer's downsizing efforts is especially acute for those workers who are here on H-1B visas, as they not only have to worry about their families and finances, but also whether they need to start making preparations to return home.

We also discussed how those H-1B visa holders fortunate enough to not only receive advance notice of a layoff but also secure a new job might be permitted by the federal government to change employers without actually leaving the country.

In today's post, we'll continue this discussion by examining the realities for those H-1B visa holders who perhaps weren't as fortunate.

H-1B visa holders laid off with no advance notice

Immigration law holds that an H-1B visa holder is admitted to the U.S. for the sole purpose of working for a sponsoring employer. As such, when this condition of admission is no longer satisfied owing to a layoff, the H-1B visa holder is technically no longer maintaining lawful status and therefore subject to removal.

Furthermore, there is no grace period, such that if the H-1B visa holder is laid off on Monday, he or she will be maintaining lawful status on Tuesday.  

This isn't to say that the situation is entirely hopeless, however, as an H-1B visa holder might be able to remain in the U.S. if they filed a request for a change in status while employed, and U.S. Citizenship and Immigration Services, which decides these matters on a case-by-case basis, grants the request despite the subsequent termination.

Such changes in status that might be sought include:

  • A change to H-4 dependent spouse status
  • A change to B-2 tourist status
  • A change to F-1 student status

At a minimum, H-1B visa holders unable to remain post-layoffs despite their best efforts should know that their ex-employer is required to cover the cost of their return flight home.

Consider speaking with a skilled legal professional as soon as possible if you have any questions or concerns relating to an employment-related immigration matter, including the impact of a layoff.

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