USCIS Issues Guidance on Legal Stay Options for Laid-Off H-1B Workers

For nearly a year, immigrant tech workers in the United States have been grappling with uncertainty. Major companies such as Google, Tesla, and Walmart have announced large-scale layoffs, casting a shadow over many immigrants' American dreams. Many are now struggling to find a way forward, and USCIS has issued guidance to help those facing the prospect of having to leave the country within 60 days find more options. The guidance is not new content; rather, USCIS has consolidated various rules so that laid-off workers can see them at a glance.

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When H-1B visa holders face termination of employment, understanding their options is crucial. Contrary to common misconceptions, they have multiple options to explore before considering leaving the United States. Through any of the following options, they can continue to stay beyond the 60-day grace period:

• Apply to change nonimmigrant status (for example, to B2);

• Apply for adjustment of status;

• Apply for a "compelling circumstances" EAD; or

• Become the beneficiary of a change-of-employer petition.

If the laid-off worker takes any of the above actions within the 60-day grace period, their period of lawful stay may extend beyond 60 days. Conversely, if no action is taken during the grace period, the worker and their dependents may need to depart the United States within 60 days or by the end of their authorized period of stay, whichever is earlier.

Filing a Change of Status Application

If the laid-off H-1B worker has a spouse holding a valid H-1B visa, the worker may become the spouse's dependent, i.e., obtain H-4 status. If the spouse holds an L visa (intracompany transferee), the laid-off H-1B worker may also become a dependent of the L visa holder. Some H-1B workers' spouses (such as those applying for a green card) may be eligible for work authorization, and spouses of L visa holders may also obtain work authorization. Alternatively, the laid-off H-1B worker may change to a student visa (F-1) or a tourist visa (B-1). USCIS reminds that nonimmigrant visitors 'may not engage in skilled or unskilled labor' in the United States. Certain F-1 students, under the regulations, may engage in limited employment.

Filing an Adjustment of Status Application

USCIS states that some workers may be eligible to file both a self-petitioned immigrant visa petition and an adjustment of status application concurrently. Immigrant categories that allow self-petitioning include EB-1 (individuals with extraordinary ability) and EB-5 (investor green card program). Generally, workers with a pending adjustment of status application are eligible to maintain lawful stay in the United States and obtain employment authorization. USCIS explains that workers with a pending adjustment of status application are typically eligible to maintain lawful stay in the United States and obtain an EAD.

Filing an "Emergency Situation" Employment Authorization Document Application

Beneficiaries of an approved employment-based immigrant visa petition (Form I-140) (i.e., a permanent residence application, commonly known as a green card) may be eligible for an emergency EAD valid for up to one year if they: have no immigrant visa available according to the Department of State's Visa Bulletin; and face an emergency situation. The emergency EAD is a discretionary measure designed to help certain individuals on the path to lawful permanent resident status avoid being forced to suddenly leave the United States. USCIS explains that workers who begin working on an emergency EAD will no longer maintain nonimmigrant status but will generally be in a period of lawful stay and will not accrue unlawful presence while the EAD is valid.

Becoming the Beneficiary of a Non-Frivolous Change-of-Employer Petition

USCIS explains that H-1B portability allows eligible H-1B nonimmigrant workers to change employers, or 'port' to a new H-1B employer, and begin working for the new employer immediately upon the proper filing of a new non-frivolous H-1B petition (requesting an amendment or extension of H-1B status) with USCIS, without waiting for the new petition to be approved.