Laid off on H-1b? What are Legal Options to Stay?
Laid Off from Your H-1B Job? Explore Your Options to Stay in the U.S.
Being laid off from your job while on an H-1B visa is challenging and stressful. Understanding your legal options clearly and quickly taking appropriate action is crucial. Generally, you have a 60-day grace period starting from the day after your termination notice or your last payroll day, whichever comes later. Negotiating with your employer for an extended payroll end date could help maximize your grace period.
Options Available During Your 60-Day Grace Period
If you find yourself laid off while holding an H-1B status, you have several options to maintain your legal status in the United States:
1. Change of Status (COS) to B1/B2 (Visitor Visa)
USCIS allows H-1B holders who have lost their employment to change their status to B1/B2 temporarily. This option permits you to search for new employment.
You must file your COS application within the 60-day grace period.
Your intent must remain non-immigrant during this period, despite these permissible activities. You should clearly outline your intended activities and non-immigrant intent in your COS application.
After securing new employment, your new employer can file Form I-129, ideally with premium processing.
If filed with premium processing, USCIS will concurrently adjudicate your pending B1/B2 and new H-1B petitions.
Important Considerations:
You cannot legally work on B1/B2 status. Employment may only resume after USCIS approves the new H-1B petition.
Provide evidence of your intention to leave the country when the authorized temporary stay is up (if you don’t secure another way to stay in the US legally), and maintain ties with your home country.
If your COS to B1/B2 is approved before you secure new employment, some companies may hesitate to interview or sponsor candidates with B1/B2 status. Carefully explain your prior H-1B status and clarify that you don't require participation in the H-1B lottery; only a status change can often resolve employer concerns. However, there are no guarantees.
Rushing into employment under pressure could result in accepting less favorable working conditions or compensation.
This option suits individuals who lack funds for schooling, can secure new employment quickly, and are willing to leave the U.S. if new employment isn't secured before B1/B2 status expires.
2. Change of Status to F1 (Student Visa)
Enrolling in an educational institution is another reliable option:
Select a reputable SEVIS-certified institution and obtain a valid I-20.
File your COS application with USCIS before your grace period ends.
Day-1 CPT programs are legal but require careful selection to ensure alignment with your previous education, professional background, and future career plans. Verify that CPT is mandatory for your chosen program and that the institution complies with immigration regulations.
Important Considerations:
Demonstrate your genuine intent to study.
Premium processing typically results in USCIS decisions within 7-30 days.
If you attended a Day 1 CPT school, USCIS often issues Requests for Evidence (RFEs) during later applications (H-1B or green card). Prepare by documenting your school attendance, tuition payments, and CPT employment.
3. Change of Status to H4 or F2 (Dependent Visa)
If your spouse is currently in valid H-1B or F1 status, changing to dependent status could be beneficial:
H4: Allows employment authorization (EAD) under certain conditions.
F2: Does not permit employment but allows legal stay alongside your spouse.
4. Change of Status to O1 (Extraordinary Ability Visa)
An O1 visa might be suitable if you possess substantial accomplishments in your field:
Requires documented evidence of significant achievements and recognition.
Professional assistance in assembling documentation is highly recommended.
5. Cap-Exempt H-1B
Securing employment with cap-exempt employers such as non-profits, universities, or research institutions can provide immediate sponsorship without the need for lottery participation.
6. Self-Petition EB-1A (Extraordinary Ability Green Card)
Qualified individuals can self-petition for an EB-1A green card:
Concurrent filing of Form I-140 and Adjustment of Status (I-485) is allowed.
EB-1A requires significant evidence demonstrating extraordinary ability, and it takes time to prepare for a petition & supporting documentation within the grace period.
Seeking Professional Guidance for your Change of Status (COS)
Our office has successfully assisted clients affected by H-1B layoffs. By promptly filing well-prepared Change of Status (COS) applications, we've helped clients maintain their lawful status. Recently, we secured an approval for a COS to F1 application through premium processing within just 9 days. This success came from carefully documenting the applicant’s genuine intent and ensuring a thorough and error-free application.
Every individual's situation is unique. We will carefully review your circumstances and discuss which option best suits your needs, guiding you throughout the entire process. Since no single option fits all, it's essential to speak directly with an immigration attorney before taking any action by yourself.
Contact our office today if you face an H-1B layoff and need immediate assistance. Taking timely and informed action is crucial to maintaining your lawful status in the U.S.
Email: info@amylawoffice.com
Phone: 571-387-0407 (please make sure to leave a voice message so we can get back to you in case we miss your call)
Disclaimer: This blog post is provided for informational purposes only and does not constitute legal advice. Relying on this information does not create an attorney-client relationship with the Immigration Law Office of Amy Chung, PLLC (“Firm”, “We”). The Firm is not responsible for any actions taken based on the information presented on this website without formal legal representation. Legal representation is established only upon the mutual signing of a Legal Services Agreement and the payment of the required attorney’s fee by the prospective client.