It’s all over the news. Massive layoffs at Twitter and Facebook. Other companies will no doubt follow the same suit. Cutting labor 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 aimed at foreign nationals who are living and working in the U.S. in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN status.
Facebook laid off 11,000 employees. Chances are many of those individuals are from abroad and were sponsored for some sort of 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.”
This means that someone who is suddenly faced with a layoff potentially has 60 days in which to find another employer to sponsor them or switch to another status. Although the 60-day grace period is discretionary USCIS will normally apply this provided the H-1B transfer is filed within the 60 days. During these 60 days an individual is considered to be in valid status for the purposes of either filing a transfer to another employer or filing a change of status.
It’s important to note that an individual gets either 60 days or whatever is left on their current I-94, whichever is shorter. This means an individual on H-1B for example, who has a pending extension and only 30 days left on their current H-1B, would only be granted a 30-day grace period.
Find a new Job
Easier said than done, especially if other companies start major layoffs. However, if you are lucky enough to find another job then your new employer needs to file a transfer petition, for example, an H-1B transfer within the relevant grace period. Once filed and received by USCIS, you will be allowed to work for the new employer immediately, without having to wait for a formal adjudication of 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.
For further details visit:
If you have been laid off and are unsure what to do, please contact PLG Partner, Chris Prescott@patellegal.com.