Technology-based companies in the United States have continuously relied upon highly-skilled noncitizens to fill key technical roles. For example, among the most popular employers for H-1B visas, tech giants like Amazon, Microsoft, Apple, and Meta, increased their employee count during the COVID-19 pandemic as consumers spent more time online. However, despite the expectation for continued growth in online usage after the pandemic, many tech companies’ predicted revenues did not materialize, leading to massive layoffs.
In one example, Meta (formerly known as Facebook), the sixth-largest sponsor of H-1B visas, laid off 13% of its workforce in November 2022. These layoffs create a domino effect for H-1B visa workers whose lives in the United States are closely tied to their employment status.
How H1-B visas work
H-1B visas are temporary, nonimmigrant visas that permit highly educated foreign professionals to work in specialty occupations that require at least a bachelor’s degree or an equivalent. This visa category requires an individual to have sponsorship from their employer. Generally, an H-1B status lasts three years but can be extended for a maximum of 6 years.
When an employer lays off or fires an employee, the employer is generally required to file a withdrawal of the original work visa petition with US Citizenship and Immigration Services (USCIS), which will alert government officials that the visa holder is now out of status. After that, the employee has a 60-day grace period or before their I-94 expires, whichever comes first, to find a new employer who will renew or sponsor their H-1B.
The H-1B visa category requires the visa holder to be actively employed to maintain their lawful status. This same rule applies to most employment-based visas in the US, including visas in the L, O, H, and TN categories.
Your options after losing employer sponsorship
If you find yourself suddenly out of status, there are a few options available to you. We recommend first consulting a reputable immigration attorney. Knowledgeable immigration attorneys understand the importance of the 60-day deadline and can help avoid unnecessary delays, ensuring the best next steps for you and your family.
1. Find a new employer
The most common path for an out-of-status H-1B visa holder is to find a new employer willing to sponsor their work visa status. You can port your current visa to your new employer if you can secure new employment within 60 days of becoming “out of status” or before your 1-94 expiration.
The portability provision preserves the legal status of an H-1B nonimmigrant already in the United States. Portability simplifies changing employers because you may not be required to apply for an entirely new H1-B. You can maintain your existing visa under a new sponsoring employer. Generally, the steps include the following:
- The new employer must file a Labor Condition Application (LCA) on your behalf.
- Once the LCA is certified, the sponsoring employer can file Form I-129, Petition for a Nonimmigrant Worker with USCIS.
- Once approved, your existing H-1B visa will “port” or transfer to your new employer.
The LCA must be approved before your grace period ends to ensure a smooth transfer of your H-1B. Once USCIS approves the I-129 petition, you may begin working under your new employer.
It’s important to note to stay and work in the United States legally, you must have proper work authorization. Working while physically present in the US – even for an employer in another country that pays you via a foreign bank account – still requires employment authorization by the US government.
2. Transfer to a different type of visa
Depending on your eligibility, you can apply for a different type of visa and change your status. However, each visa type has its own eligibility requirements and application process, so it’s best to consult an immigration attorney. Additionally, unemployment benefits are not listed as public benefits under The US Department of Homeland Security’s (DHS) new public charge rules, so they will not affect your eligibility to extend or change your status.
While USCIS is not guaranteed to approve your adjustment petition, you will maintain your status while it is processed. If USCIS denies your visa transfer request, you will have 30 days to leave the country, after which you will be considered to be in the US “unlawfully.”
Common visa types to consider:
- Tourist visa
B-1/B-2 tourist visas may allow an individual to stay in the US for six more months. However, you must have a legitimate reason to adjust your status to a tourist visa. Applicants are not permitted to purposely pursue employment opportunities while on a tourist visa, or they may risk future visa denials. To request a status change, you will need to file Form I-539, Application to Extend/Change Nonimmigrant Status.
- Spouse-dependent visa
An H4 visa is issued to a legally recognized spouse of a valid H-1B holder. The processing can take two to twelve months but provides the opportunity to obtain an Employment Authorization Document (EAD) granting permission to work in the US. This status generally applies to spouses of H1-B visa holders undergoing the employment-based green card process.
- Student-based visa
Consider taking advantage of a career change to return to higher education and build new skills. If you’re interested in continuing your studies in the US, you can file Form I-539 to adjust to an F, M, or J student visa. To be eligible for a student visa, you must apply for and be accepted into an accredited academic or exchange program and have received a Form I-20 (for F/M visas) or DS-2019 (for J visas).
- Treaty-trader and investment visas
If you are a citizen of a country with which the US has a trade and investment treaty agreement, you may be able to consider an E-1 trader or E-2 investor visa. To be eligible for an E-1 visa, you must carry on substantial trade between the US and the treaty country. Items of trade include but are not limited to:
- International banking
- Technology and its transfer
- Some news-gathering activities
An E-2 investor visa requires a substantial investment in a US-based start-up or the purchase of a business. USCIS defines a substantial investment as
- Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one
- Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
- Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher proportionally the investment must be to be considered substantial.
Another investment-based visa is an EB-5 Investor Immigrant Visa. The minimum investment required for EB-5 visa eligibility is $800,000 in a US-based business, and you must file the business plans with your visa application. In addition, the EB-5 program allows you to file for adjustment of status and receive work authorization while your application is pending.
3. Obtain family or marriage-based visa sponsorship
If you have an immediate family member who is a US citizen, they can sponsor you for green card status. To sponsor you, your family member must be a spouse, child over 21, parent, or sibling. In addition, you must prove your relationship through Form I-130, Petition for Alien Relative. You can learn more about this on the Family of US Citizens page on the USCIS website.
If you are a fiancé or spouse with a US citizen or US green card holder, you can apply for an adjustment of status and obtain a marriage-based green card. Please note that marriage does not automatically grant US citizenship, and during the application process, you will need to prove to USCIS that the relationship is valid and genuine.
There are different marriage-based visas depending on your current status as either fiancé or spouse. Before choosing which visa will work best for your situation, several factors must be considered. You can read more in our article, “Deciding between a fiancé or marriage-based visa.”
If you have a US citizen spouse, it is possible to file for a marriage-based green card even if you’ve fallen out of status or remained in the US past the date of your I-94 expiration. This is because USCIS considers spouses “immediate relatives” of US citizens and therefore allows them to file Form I-485, Adjustment of Status, together with Form I-130, Petition for Alien Relative.
4. Request asylum
If returning to your home country is a threat to your safety, you may be able to apply for asylum. Asylum is a form of protection granted to individuals who can demonstrate that they are unable or unwilling to return to their home country because of persecution or a well-founded fear of persecution on account of:
- Membership in a particular social group,
- Or political opinion
You may apply for asylum by submitting Form I-589, Application for Asylum and for Withholding of Removal to the US Citizenship and Immigration Services (USCIS). Please note if you are in the US past your 60-day grace period or I-94 expiration date and your asylum application is denied, you may be referred to immigration court for removal proceedings.
5. Return to your home country
If leaving the United States is the best course of action after your employment ends, speak with your company about travel and relocation expenses. In certain situations, your employer may be required to pay for a flight to allow you to return to your home country or your last country of residence. Once back in your home country, you may apply for re-entry to the United States with a new visa application.
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Stump & Associates is Oklahoma City’s most respected immigration law firm. With more than 30 years of experience, we know how to handle cases just like yours.
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