Getting laid off can be stressful and scary for anyone involved, but especially for visa holders whose very immigration status depends on their employer. If you lose your job while on a work visa, don’t panic. We’ve put together this guide so you can feel empowered about maintaining your immigration status and exploring all available options. Here’s some important information to keep in mind and next steps to take:
If you lose your job while on an H-1B visa, you are considered immediately “out of status” in the United States. This is because the H-1B visa category requires the visa holder to be actively employed in order to maintain lawful status. This same rule applies to most work visas in the U.S., including visas in the L, O, H, and TN categories.
When an employer lays off an employee, the employer is generally required to file a withdrawal of the original work visa petition with U.S. Citizenship and Immigration Services (USCIS), which will alert government officials that the visa holder is now out of status. Although in this instance you are considered out of status, it doesn’t necessarily mean you will need to immediately leave the U.S. or that you risk deportation right away.
The Grace Period
If sponsored employment is lost, such as being laid off, there is generally a 60-day grace period for work visa holders to find a new job before they have to leave the country. There tends to be confusion around when the 60-day grace period starts. According to USCIS guidelines, the 60 day window is typically counted from the last day you performed actual work, rather than the last time you were paid. Most immigrant workers who are laid off choose to remain in the U.S. during this 60-day window (or until their I-94 expiration date, whichever comes first) while they seek other employment.
In addition to the 60-day grace period, USCIS takes into account a visa holder’s I-94 expiration date when determining lawful versus unlawful presence. If your I-94 expires before the end of the 60-day grace period, you must follow the date on your I-94 instead of the 60-day period.
To get legal advice on the best way forward, you may be interested in Boundless’ Ask My Attorney program. Subscribers get unlimited 15-minute consultations with independent immigration attorneys for just $24 per month. Learn more about what we do to help.
Although every person’s situation is unique, there are generally three options available if you have lost your job while on a work visa, such as an H-1b:
Option 1: Leave the U.S.
Although uncommon, some immigrant workers may choose to leave the U.S. soon after their employment ends. If you choose this path, be sure to speak with your company about travel and relocation expenses. If a sponsoring employer terminates an H-1B visa holder, the employer must offer to pay for a flight to allow them to return to their home country, or to their last country of residence.
IMPORTANT NOTE: The next two sections will cover options that allow you to apply for different visa types and change your status. For all of the change of status options below, as long as you didn’t accrue six months or more of unlawful presence before departing the United States, you may be eligible to apply for each option as a visa application at the nearest overseas U.S. Embassy or consulate.
Option 2: Find New Employment Within 60 Days
The most common path for a work visa holder when they lose their job is to quickly search for a new sponsoring employer to maintain their H-1B status. Below we’ll explain two key concepts to keep in mind when searching for a new job in this instance — “portability” and the 60 day rule.
Understanding Portability and the 60 Day Rule
According to the U.S. government’s “portability” rules, work visa holders are able to remain in the U.S. after the 60-day window or past the expiration of their I-94 if they can find new employment. Should you find a new sponsoring employer within 60 days or before your I-94 expires (whichever comes first), the new employer can file a new Labor Condition Application (LCA) with the U.S. Department of Labor on your behalf. Once the LCA has been certified, the sponsoring employer can then file Form I-129, Petition for a Nonimmigrant Worker with USCIS to continue the process. Once USCIS approves the petition, your existing H1-B visa will “port” or transfer to your new employer. Portability simplifies the process of changing employers because you are generally not required to apply for an entirely new H1-B, you can simply maintain your existing visa under a new sponsoring employer.
It is important to begin your employment search and application process before your grace period expires. Given the time it takes to file and receive approval for a new LCA, it is safest to start the process at least 2 weeks before your grace period expires. The LCA must be approved before the grace period ends to avoid any complications or lapses in your status. Once USCIS has received the change of employer petition, it may be possible to begin working under your new employer. It is always at the discretion of USCIS to approve the petition from the new employer and extend your work visa status in the U.S.
Option 3: Apply for a Different Visa Type
If you’re no longer able to maintain your work visa status, it may be possible to apply for and obtain a different type of visa altogether to stay in the U.S.
B-1/B-2 Tourist Visa
Some individuals may choose to extend their time in the U.S. and switch their status to a B-2 tourist visa to wind down their affairs after a period of employment. If you’d like to go this route, you can request a change of status, which allows six months in the U.S. as a B-2 tourist, by filing Form I-539, Application to Extend/Change Nonimmigrant Status. Approval of this request is always at the discretion of USCIS and is therefore not guaranteed, but you’ll maintain your status while the government processes Form I-539. If USCIS denies your visa transfer request, you will then have 30 days to leave the country, after which you will be considered to be in the U.S. “unlawfully.”
Individuals may choose to take advantage of a career change to return to higher education and build new skills. If you’re interested in continuing your studies in the U.S., you can also file Form I-539 to adjust to an F, M, or J student visa. In order to be eligible for a student visa, you will need to apply for and be accepted into an accredited academic or exchange program and have received a Form I-20 (for F/M visas) or DS-2019 (for J visas).
H-4 Dependent Spouses
If your spouse is also an H-1B visa holder or has another type of visa status that allows them to work or study in the U.S. with dependents, you may also be eligible to apply for H-4 or another dependent status as a dependent spouse. Certain H4 dependents can also obtain an employment authorization document (EAD) that allows them to work in the U.S. as well. This status generally applies for spouses of H1-B visa holders who are undergoing the employment-based green card process. If you’re unsure whether you qualify for a dependent status or work authorization based on your spouse’s visa, it is best to discuss your situation with an immigration attorney. Learn more about Boundless’ “Ask My Attorney” consultation service.
Mexican and Canadian nationals are generally eligible to apply for a TN (Trade NAFTA) visa which also allows them to work in the U.S. for three years, with options to renew. The application process is generally less complicated, but unlike the H-1B, the TN is considered a “nonimmigrant” visa and does not provide a pathway to permanent residence. If you have a pending employment-based petition (Form I-140) already in progress, it is important to speak with an immigration attorney to understand how changing your employment visa status may affect your current application.
Certain professionals who demonstrate “extraordinary ability” may be eligible to apply for an O-1 visa, a special employment visa for those in the top of their field. The eligibility requirements for O-1 visas are more particular and stringent than other work visas, but the application does not require a labor certification from the Department of Labor or a lottery process like the H-1B.
E-1/E-2 Treaty Trader Visa
If you are a citizen of a country with whom the U.S. has a bilateral trade and investment agreement, it may be possible to apply for a long-term employment based visa as an E-1 trader or E-2 investor. To change your status from another work visa type to an E-1 or E-2, you must first file Form I-129, Petition for a Nonimmigrant Worker. If USCIS approves your petition before your I-94 expiration date, you will be able to transfer your legal status to an E-1 or E-2 visa.
EB-5 Investor Immigrant Visa
If you have sufficient assets and want to invest in an enterprise in the U.S., you can do so by filing for an EB-5 investor visa. The minimum required investment amount to be eligible for an EB-5 visa is $800,000 USD, and you must file business plans along with your visa application. The EB-5 program allows you to file for adjustment of status and receive work authorization while your green card application is pending. The whole process takes up to 3 years from start to green card approval. You can remain in the U.S. while your application is pending, but you are not able to work until you receive your work authorization from USCIS.
Family-based Immigration Options
If you haven’t seen any progress on your employment-based green card application, or you’re struggling to find a new sponsoring employer to maintain your work visa, it may be possible to remain in the U.S. by going the family-based route instead. If you have an immediate family member who is a U.S. citizen or permanent resident, they may be able to sponsor you for a family-based green card.
If your spouse is a U.S. citizen or U.S. green card holder, you can apply for an adjustment of status and obtain a marriage-based green card. For applicants with U.S. citizen spouses, it is possible to file for a marriage-based green card even if you’ve fallen out of status or remained in the U.S. past the date of your I-94 expiration. USCIS considers spouses “immediate relatives” of U.S. citizens, and therefore allows them to file “concurrently”— filing Form I-485, Adjustment of Status together (“concurrently”) with Form I-130, Petition for Alien Relative.
If you’re currently engaged to a U.S. citizen or U.S. green card holder, you may consider pursuing the marriage-based green card route once married.
Boundless has a detailed guide on marriage-based green cards, where you can learn more about the cost, timeline, and application process. If you’re interested in pursuing this path, Boundless offers personalized support and expert guidance putting together all required marriage green card forms and documents. We’ll even help you submit your application to the government. Start by checking your eligibility.
Adult Child (IR-5 Visa)
If you are the parent of a U.S. citizen, you may be able to adjust your status to a green card based on your relationship with a U.S. citizen son or daughter through the IR-5 visa process. Like spouses, USCIS considers parents “immediate relatives” of U.S. citizens and allows concurrent filing for these types of applications. In order to be eligible for a green card through your adult child, your child must be 21 years of age or older. If your child is under the age of 21, you would not qualify for an IR-5 visa based on this relationship.
Boundless put together a detailed guide on the IR-5 visa and everything parents of U.S. citizens need to know about the process. If you’re ready to get started, Boundless + RapidVisa can help you apply for the IR-5 visa, including full document preparation and personalized guidance from start to finish. Learn more about what we do to help.
Overall, there are many visas and immigration pathways available, some specific to each country or nationality. If you’d like to discuss all of the options available in your specific situation and get personalized legal advice on the best way forward, it is generally a good idea to consult with an immigration legal professional. Boundless’ Ask My Attorney (AMA) program can help connect you with an experienced independent immigration attorney instantly and provide you with unlimited legal consultations. Check your eligibility and learn more about the program here.
If your employer was sponsoring you for an employment-based green card, you may be wondering if losing your job will jeopardize a pending green card application and your ability to obtain permanent residence. The good news is that USCIS also takes portability into account when it comes to pending I-485 applications and employment transfers. If your adjustment of status application had been pending for over 180 days prior to your work visa lay-off, you are generally able to “port” or change jobs without jeopardizing your green card application. The new employment must be a position which is the same or similar to the position that was indicated on a previous PERM labor certification or approved I-140 petition.
If it has been less than 180 days since you filed for a green card, your new employer may need to submit a new PERM and I-140 petition on your behalf. In such cases, it may still be possible to maintain your original visa bulletin petition priority date to file your I-485 adjustment of status right away.
A pending green card application may also offer some relief once an employment authorization document (EAD) is issued. Filing for an EAD is a routine part of the adjustment of status process and the document itself can offer temporary protection for any lapses in work authorization. Unlike H1-B and other similar visas, the EAD is an “open market” work permit, meaning it does not bind you to a particular employer.
Transitioning to a new employer can have consequences for pending employment-based petitions and your immigration status in the U.S. overall, so it’s important to consult with an immigration attorney to determine the best way forward. Questions regarding PERM validity, pending green card applications, and methods to navigate your petition priority date while changing employers are critical to understand during this process and best discussed with legal immigration experts.
For just $24 per month, Boundless can match you with an experienced independent immigration attorney to answer any questions you may have about your immigration status and how best to proceed. Get started by checking your eligibility for the Ask My Attorney (AMA) program here.