While the U.S. economy is on a path of slow recovery and jobs have been steadily added to the labor market, layoffs can be particularly stressful for H-1B workers as they face the consequence of falling out of status. Naturally, this presents many questions to laid off H-1B workers and those who anticipate to lose their jobs. We set out below some commonly asked questions and answers to clarify certain misconceptions about H-1B status and layoffs.

Question 1. I was recently laid off and my company told me that it notified USCIS to revoke my H-1B petition. Will the revocation prevent my new employer from filing an H-1B petition for me?

The revocation of H-1B petition upon employment termination does not prevent approval of an H-1B petition filed by a subsequent employer (i.e. transfer petition). Nor does the revocation subject subsequent petition(s) to the annual H-1B quota.

However, the layoff will affect an alien’s ability to change employers within the U.S. The H-1B status is lost as soon as employment is terminated. When your new employer files an H-1B petition requesting a change of employer, USCIS requires proof of the alien’s valid status as of the time of filing. USCIS has discretion to approve the petition when there is a short gap, but it can find that the alien is out of status, and therefore approves the H-1B petition but denies the extension of status request. In the latter situation, the alien will be required to apply for a new H-1B visa at a U.S. consulate in one’s home country.

Question 2. I may be laid off soon. What measures can I take to avoid falling out of status?

An alien anticipating a layoff should begin looking for a new job as soon as possible and have the new employer file an H-1B petition to transfer the alien’s H-1B status to the new employer. If the alien cannot find a new job before being laid off, s/he may apply to change status under certain circumstances to preserve his/her legal status in the U.S. Often times, if an alien’s spouse is in H-1B or L-1 status, the alien can apply to be a dependent of his/her spouse (H-4 or L-2, respectively). Other times, an alien can apply to change status to F-1 student to return to school. However, because it takes time to prepare an F-1 application (i.e. taking requisite exams and applying to schools), aliens choosing this route are encouraged to start preparing the application as soon as possible.

It may also be possible to request a status change to B-1/B-2 following a layoff if an alien needs additional time to wind down personal affairs in the U.S. such as arranging the move back to his/her home country, then a B-1/B-2 change of status request may be a suitable option. This is because the alien can utilize the time it takes USCIS to adjudicate the application, even if the application is ultimately rejected.

Question 3. I changed status to F-1 in anticipation of a layoff. Will I be subject to the annual cap if I find a new employer who is willing to sponsor my H-1B visa?

No. Reverting back to H-1B status from other interim status such as F-1 or H-4 does not subject one to the H-1B cap again, provided the alien has already been counted against the cap in the past six years. The alien can begin working as soon as the H-1B petition filed by the new employer is approved.

Question 4. I was working in H-1B status and I was recently laid off. I also have an Employment Authorization Document (EAD) received in relation to my pending I-485. Can I work for a new employer based on my EAD?

Yes. An alien can maintain his/her legal status upon a properly filed I-485 and EAD. However, it is advisable that the alien maintain H-1B status as a backup in the event that the I-485 application is denied.

Conclusion

Layoffs are stressful to everyone, aliens and U.S. citizens alike. If you are concerned about maintaining legal status and avoiding immigration problems, it is recommended that you seek advice from a qualified immigration attorney. We at Verma Law Firm can advise you on questions regarding layoffs, wage payments, and maintaining legal status. Please click here to contact us or schedule a legal consultation.