H-1B's: What To Do If You Are Laid Off From Your Job

Many people believe that an H-1B worker who is laid off has ten days to either apply for a new job or leave the U.S.  This is completely untrue. 

The confusion regarding the "ten day" rule stems from the following regulation (8 C.F.R. §214.2(h)(13)(I)(A)):      

A beneficiary shall be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends.  The beneficiary may not work except dur9ing the validity period of the petition.

This regulation governs H-1B workers who are leaving the U.S., not those who are changing their employers or their nonimmigrant status. 

Where an H-1B worker has been laid off or terminated, and his H-1B petition has not been revoked, the worker may request a change of status to another nonimmigrant category while he seeks employment.  If the worker locates suitable employment, the new employer to submit an H-1B petition to the INS and request a change of employers.  The amount of time that an H-1B worker may stay in the U.S. after being laid off or terminated is not defined in the law or the regulations.  Various INS officials over the years have opined the H-1B worker must submit an application for a change of employers within 30 days or 60 days.  However, these statements are merely opinions and do not have the force of law. 

The wise worker will obtain an offer of employment, and have the new employer submit an application to change H-1B employers, as soon as possible.  Under AC-21, the H-1B cap law enacted during October 2000, the worker may commence employment with the new employer as soon as the H-1B transfer petition is submitted to the INS.  Either it will be approved, or if the INS decides that too much time has elapsed since the worker was laid off or terminated, the INS will approve the H-1B petition and deny the application to change employers in the U.S.  In the later case, once a Notice of Approval is issued, the worker may depart the U.S. and apply for a new H-1B visa abroad.  If his old H-1B visa has not expired, he may be able to simply travel outside the U.S. and return using his original H-1B visa and his original Notice of Approval (form I-797) of his newly-approved H-1B petition. 

If an H-1B worker is laid off or terminated, and can not quickly obtain a professional offer of employment, another alternative is to submit an application to change status to a B-1 business visitor or a B-2 tourist while he looks for work.  When he finds a job, the new employer may apply to the INS to change his status back to H-1B.  

Finally, what happens if the laid off worker is already the beneficiary of an approved employment-based visa petition?  In this case, the worker should have his new employer submit an RIR labor certification and an EB visa petition on his behalf.  He will be able to use his original priority date. 

If the laid-off worker is working using an EAD, he may immediately start working for a new employer.  Losing one's job does not invalidate an EAD. Only the denial of the application for adjustment of status does this. Again, the worker should have his new employer submit an RIR labor certification and a visa petition on his behalf as soon as possible. 

Where the processing of applications for adjustment of status for persons with approved EB petitions takes only a few months to be approved (e.g., at the California Service Center), there may not be time to obtain the approval of a new labor certification and visa petition before the application for adjustment of status is adjudicated. 

If this is the case, it may be necessary for the worker to have his employer file a new H-1B petition for him even though he is currently working using an EAD.  Again, if his old H-1B visa has not expired, he may be able to travel outside the U.S. and return using his original H-1B visa and his original Notice of Approval (form I-797) of his newly-approved H-1B petition. 

Of course, if the application of adjustment of status was pending for over 180 days prior to the lay off, the worker may change jobs without jeopardizing his green card application as long as the new job is in the same or a similar occupation. 

Still have questions about preserving your immigration status in the event of a lay off?  Email me.