Options for Nonimmigrant Workers Post Termination
Contributor: Van T. Doan
Temporary foreign workers have long been an important part of the U.S. economy. In recent years, the number of nonimmigrant workers in the United States has risen; according to some reports, there were more foreign workers, including temporary workers, in the United States in 2022 than in almost 30 years.
While some foreign workers come to the United States with the intention of becoming lawful permanent residents, and perhaps ultimately citizens, many enter the country on nonimmigrant employment visas. Those visas are contingent upon their continued employment. But what happens when a temporary foreign worker loses their job? Must they leave the country immediately? Is there a grace period during which they can remain in the United States? And what options exist for remaining in the U.S. beyond any grace period?
What to Do if You are Laid Off While on a Work Visa
Getting laid off from a job is stressful even when your employment status doesn’t depend on your job. When it does, a layoff can be downright terrifying. If you are in the United States on an H-1B visa (for specialty occupations) and are laid off from your job, you are considered to be “out of status,” because your visa is tied to your employment for your particular employer. The same rules apply to other H visas, including H-2A, H-2B, and H-3; L visas (intracompany transferees); O visas (individuals with exceptional abilities or achievements); and TN visas (professionals from Mexico or Canada).
There is a 60-day grace period during which you can try to get a new job or an adjustment of status. The 60 days begin counting from the last day of work for which you were paid—NOT the last date you received a paycheck, which may be a week or two after your last day of work.
Of course, simply leaving the country before the 60 days expire is an option, too, but not one that most people want to pursue. However, if you were on an H-1B visa and were laid off, your sponsoring employer must pay for your flight to your home country (or the country in which you most recently resided).
Seek a New Job
Most temporary workers who lose their jobs (or leave their jobs) choose to look for another one, with a new sponsoring employer. If you find another job within the 60-day grace period or before the expiration of your I-94, whichever comes first, your employer can file a new Labor Condition Application (LCA) for you. Once your new LCA is certified, your new sponsoring employer can file Form I-129 (Petition for a Nonimmigrant Worker). When this petition is approved by USCIS, your H1-B visa becomes portable and transfers over to your new employer. The advantage of this is that you don’t have to apply for a new H-1B visa; you simply “port” your existing visa to a new employer.
Remember that 60 days is not a long time, and your LCA must be certified before the end of the grace period to avoid a lapse in status. Therefore, if you lose your job and would like to stay in the United States, start the search for a new job immediately.
Pursue a Different Type of Visa
If you are having difficulty finding a job that would allow you to “port” your existing employment visa, or you do not want to get a new job for whatever reason, you may be able to secure a different type of visa to allow you to remain in the United States.
The simplest option, if you are in the country with a spouse whose visa allows them to work in the United States with dependents, is to seek an H-4 visa as a dependent spouse. You may also be eligible for dependent spouse status if your spouse is a student.
If you are not eligible for a dependent spouse visa, you may be able to request a change of status to a B-2 tourist visa. You will need to file Form I-539, Application to Extend/Change Nonimmigrant Status. The decision whether to grant or deny this request is discretionary, so you cannot assume that you will be able to switch to a tourist visa. If your request is approved, however, you’re in luck: you can remain in the United States for up to six more months, during which time you may be able to find another employer willing to sponsor you for an employment visa, further extending your stay.
Another option, if you are interested in pursuing further education, is to apply for a student visa. You would need to use Form I-539, and, of course, apply for and be accepted into a suitable academic or exchange program.
Depending on your circumstances, you may be eligible for other visas as well. Speak with an experienced immigration attorney to explore your options.
How an Immigration Attorney Can Help
If you are a temporary foreign worker who has recently lost or left your job, you need to be aware of avenues that could allow you to remain in the United States—and actions that could jeopardize your ability to remain in the country.
The sooner you speak with an immigration attorney after your job loss, the more time you have to develop an alternate plan and put it in place. To learn more about options for nonimmigrant workers post termination, contact our law office to schedule a consultation.
Categories: Immigration Law