Options For Foreign Nationals Who Are Laid Off

Posted on Nov 9, 2022 by Chris Prescott

It’s all over the news.  Massive layoffs at Twitter and Facebook.  Other companies will no doubt follow the same suit.  Cutting employment costs is the number one way that companies deal with reduced profits, diminished demand for products and services, especially during a recession.

Unfortunately for foreign nationals being laid off is particularly problematic as their very presence in the U.S. depends on holding a valid status, which for a lot of individuals, is dependent on their employment.

So, what options do foreign nationals have?

This article is for foreign nationals living and working in the U.S. under E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN status.

Facebook laid off 11,000 employees. Many of them are from abroad. Some entity sponsored them for a non-immigrant status.

Fortunately, the regulations offer some relief.

8 CFR 214.1(l)(2) provides for a 60-day grace period, based on a cessation of employment and states as follows:

“An alien admitted or otherwise provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien’s classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. DHS may eliminate or shorten this 60-day period as a matter of discretion. Unless otherwise authorized under 8 CFR 274a.12, the alien may not work during such a period.”

An individual who gets laid off has 60 days to find a new employer to sponsor them or switch to another status. The 60-day grace period is optional. But, USCIS will usually apply it if you file the H-1B transfer within 60 days. During these 60 days, an individual is in valid status. They can use it to file a transfer to another employer or a change of status.

An individual gets 60 days or the rest of their current I-94, whichever is shorter. This applies to an individual on H-1B, for example. They have a pending extension and only 30 days left on their current H-1B. They would only get a 30-day grace period.

Find a new Job

Easier said than done, especially if other companies start major layoffs. But, if you are lucky and find another job, your new employer needs to file a transfer petition. For example, an H-1B transfer, within the grace period. Once you file it and USCIS gets it, you can work for the new employer right away. You won’t have to wait for a formal decision on your petition.

What happens if the new petition is filed outside of the relevant grace period?

A USCIS officer has the discretion to extend the 60- day grace period, however, this would be on a case by case basis.  During the height of the pandemic, we were able to successfully obtain an approval where the transfer was filed outside of the 60 day grace period.  See our previous article for further details.

Transfer to another status

If finding another job is not possible an individual has the option to file a change of status, for example to F-1.  This would allow an individual to remain in the U.S., however, beware that change of status applications have lengthy adjudication times.

If an individual cannot secure new employment or switch to another status, they may be forced to leave the U.S.   One final option is the compelling circumstances EAD.

Compelling Circumstances EAD

For those who have an approved I-140 obtaining a compelling circumstances EAD may be a viable option.  Getting laid off in itself is not necessarily a compelling circumstance unless coupled with other factors such as:

  • Serious illness/disability to a non-immigrant worker or his/her dependent;
  • Employer retaliation;
  • Substantial harm to the applicant; or
  • Significant disruption to the employer.

If you have been laid off and are unsure what to do, please contact PLG Partner, Chris Prescott@patellegal.com.