As of May 2010, the unemployment rate in the United States is close to 10%, representing at least 15.3 million people out of work. Cities such as Troy, Michigan and Columbus, Ohio continue to struggle. Indeed the economy is improving but unemployment rate is expected to hold steady and with tougher H-1B review by USCIS and higher rates of H-1B denials, it is expected that more H-1B holders will lose their jobs in the next few months. While U.S. Citizens and permanent residents can collect unemployment benefits as they search for a new job, H-1B visa holders do not have that option. In fact, for H-1B visa holders, losing their job means losing their status.
There is a fair amount of confusion concerning whether there is a “grace period” after an H-1B visa holder’s employment is terminated. Rumors abound that the 60 day grace period applicable to F-1 student status applies to H-1B status. Moreover, many interpret CFR 214.2(h)(13)(i)(A) as providing for a grace period after the validity period of the H-1B ends. Technically speaking, an H-1B visa holder is out of status once their H-1B has been revoked or expires. The 10 day period provided for in CFR 214.2(h)(13)(i)(A), however, is intended to provide the foreign national time to wrap up their affairs and leave the United States. It is not, unfortunately, meant to provide the foreign national time to find and port to a new H-1B position. What, then, are the options for H-1B visa holders who have been laid off?
Despite the lack of a formal grace period, one option may be for an H-1B visa holder to port to another H-1B employer. Depending upon the amount of notice the employer has provided, the H-1B visa holder may be able to secure a new H-1B position before their termination is effective. For example, if the H-1B employer gave the H-1B visa holder two months notice before their termination became effective, the H-1B visa holder may be able to find and port to a new H-1B position before their H-1B is revoked. Under the American Competitiveness in the Twenty First Century Act, the H-1B employee can begin working with their new H-1B employer as soon as the new employer files a portability petition with the United States Customs and Immigration Services (USCIS). Thus, it may be possible for the foreign national to port to the new H-1B position before their original employer revokes their H-1B status.
If the H-1B employer has not provided sufficient notice or porting is not an immediate possibility, another option is for the foreign national to change status. A change of status, though, is highly dependent upon each individual H-1B visa holder’s situation. For instance, an H-1B visa holder may be able to change their status to F-1 student status. This may be difficult, though, considering the H-1B visa holder must be accepted and begin classes within a short period of time. Another option may be a temporary change of status to a B1/B2 visa or to a dependent status such as H-4 or L-2, again depending upon the foreign national’s specific circumstances. Additionally, if an H-1B visa holder has commenced the permanent resident process, they may be eligible to work in a substantially similar position on an EAD card.
An H-1B visa holder that is being laid off should immediately consult with an experienced immigration attorney about their individual situation. The H-1B employee should thoroughly understand their options for remaining and working in the United States after the lay off. And it is important to remember that time is of the essence, because for an H-1B visa holder losing their job means losing their status.