Overseas workers in the United States on a nonimmigrant work visa are in a precarious situation. One such challenge is the potential loss of their immigration status following job termination. In this comprehensive guide, we will explore the options available to these workers, particularly those from India who seem to be most affected by recent layoffs.
1. The Impact of Job Loss on Immigration Status in the US
The American dream has always been a beacon for skilled professionals around the world. However, stlegal presence in the US can be fraught with obstacles. One of the most significant challenges arises when an individual loses their job while on a nonimmigrant work visa.
I usually tie nonimmigrant work visas to specific employers. The H1B visa, for instance, allows foreign workers to live and work in the US, but it is contingent on continued employment with the sponsoring employer. Therefore, if the employment relationship ends, the worker may have to leave the country.
2. The 60-Day Discretionary Grace Period
In general, if a worker on a nonimmigrant visa loses their job, they are given a 60-day discretionary grace period. This period applies to workers in E1, E2, E3, H1B, H1B1, L1, O1, and TN classifications, and their dependents. This grace period provides a brief window for the worker to maintain their nonimmigrant status while they explore other options.
During this time, the worker can seek new employment and have the new employer file a petition on their behalf with an extension of stay request. Alternatively, the worker can file an application to change their nonimmigrant status, such as switching to a B-2 visitor visa or applying for adjustment of status if eligible. However, if the worker is unable to file a change of status application or find a new employer who timely files a petition for them, they may have to to leave the US at the end of the 60-day grace period.
3. Portability to a New Employer: The H1B Visa Scenario
One of the primary options available to workers who lose their job is portability to a new employer. This rule is particularly beneficial for individuals in H1B status. The rule allows these workers to begin working for a new employer as soon as that employer files a new H1B petition with USCIS, without firstly have to wait for the petition to be approved.
In order to be eligible for portability, the worker must not have been employed in the US without authorization since their last admission, and the new employer must file a non-frivolous petition (something that is credible) before the expiry of the worker’s initial H1B period of authorized stay. It’s crucial to note that if the worker’s employment ends before a new employer files a petition on their behalf, they will typically have up to 60 days or until the end of their authorized validity period (whichever is shorter) to find new employment as an H1B nonimmigrant worker.
4. Changing Status: Exploring Alternative Visa Options
Another avenue available to workers following job loss is applying for a change of status. Workers can use the 60-day discretionary grace period to apply for a change in their nonimmigrant status. For instance, they can change their status to become the dependent of a spouse (for example, switching from H1B to H-4 or L-2 status).
Some individuals in a dependent non-immigrant status may be eligible for employment authorization based on their status. This includes spouses of E1, E-2, E-3, or L-1 non-immigrants. Additionally, some spouses of H1B workers may be eligible for work authorization if certain requirements are met.
Other possible non-immigrant visa options to stay in the US include student status (F-1) or visitor status (B-1 or B-2). However, these options have limitations on employment. B-1 and B-2 non-immigrant visitors are specifically prohibited from performing skilled or unskilled labor in the United States, while certain F-1 students may engage in limited employment.
5. Self-Petitioned Immigrant Visa Petitions and Adjustment of Status
In some limited circumstances workers may be eligible to file a self-petitioned immigrant visa petition concurrently with an adjustment of status application. Examples of immigrant classifications that are eligible for self-petitioning include EB-1 extraordinary ability, EB-2 national interest waiver, or EB-5 immigrant investors. Workers with a pending adjustment of status application are generally eligible to remain in the US and obtain an Employment Authorization Document (EAD).
6. Compelling Circumstances Employment Authorization Document
Workers who are the beneficiary of an approved employment-based immigrant visa petition (Form I-140) may be eligible for a Compelling Circumstances Employment Authorization Document (EAD) for up to one year if they do not have an immigrant visa available to them and face compelling circumstances.
This EAD is a discretionary stop-gap measure intended to assist certain individuals on the path to lawful permanent residence by preventing the need to abruptly leave the United States. Workers who begin working on a compelling circumstances EAD will no longer be maintaining non-immigrant status but generally will be considered to be in a period of authorized stay and will not accrue unlawful presence in the United States while the EAD is valid.
7. Expedited Adjudication
Certain circumstances may warrant expedited adjudication, including applications to change status to a dependent status that includes eligibility for employment authorization. For instance, an individual attempting to change status from H-1B to L-2 will be eligible for expedited adjudication to prevent severe financial loss.
8. Departing the US Post-Job Loss
In some cases, workers may choose to depart the US. For H-1B and O workers who choose to leave after losing their job, the cost of transportation to the worker’s last place of foreign residence must be borne by the H-1B or O employer/petitioner, as applicable.
Once abroad, H-1B holders may seek US employment and readmission to the United States for any remaining period of their H-1B visa status. Those seeking another classification for which they may be eligible can complete the application or petition process abroad and seek readmission to the United States. The problem is that in many cases there may be no suitable visa available.
workpermit.com helps with US Work Visa: L1, H1B, E2, and O1 Visas
There are various types of US visas that individuals can apply for, depending on their circumstances. Some of the most common employment-based visas include:
L1 visa: This visa is for intracompany transferees who work in managerial or executive positions or have specialized knowledge.
H1B visa: This visa is for specialty occupations that require theoretical or technical expertise in specialized fields.
E2 visa: This visa is for investors who have made a significant investment in a US business and, management or essential skills employees. Only certain nationalities can apply.
O1 visa: This visa is for individuals with extraordinary abilities in the arts, sciences, education, business, or athletics.
Workpermit.com is a specialist visa services firm with over thirty years of experience dealing with visa applications. For more information and advice, please contact us on 0344 991 9222 or at [email protected](link sends e-mail)