Layoffs and H-1B visas: how to protect yourself

In the recent few months, the United States is going through a layoff wave that has affected hundreds of companies and thousands of workers. According to the website, more than 68,000 employees were laid off in January 2023 from 200+ companies in the tech sector alone. Some of the most well-known organizations engaging in these practices are Alphabet (Google), Meta (Facebook, Instagram), Amazon, or Microsoft. 

Experts estimate that 10 to 30% of these laid off workers are immigrants on H-1B visas. For these workers, losing their job is not only about risking their livelihoods but also their immigration status. In this blog post we lay out the paths H-1B visa holders have to remain in the US if caught by the layoff wave, and how immigrants on a visa can protect themselves from this risk moving forward.

Workers laid off in 2022-2023 source
Tech layoffs in 2022-2023 Source:

Laid off H-1B workers: Maintain visa (no ongoing green card application)

Getting laid off is a shock for anyone. It is a deeply emotional moment for many, as they are forced to abandon a workplace they may like, say good bye to their coworkers overnight, and most importantly, lose their income. For immigrants on H or F visas (and others as well), the shock is a more profound one, as they also risk being kicked out of the country if they are not successful in the weeks following the firing. Therefore, visa holders cannot afford to take a pause and heal emotionally, and they should act fast.

The 60-day rule for H-1B visa holders

H-1 visa holders are subject to the 60-day rule. This rule says that they must find a new company that will submit a visa transfer petition to USCIS within those 60 days.

The new employer must file form I-129 with the associated documents to USCIS and pay the H-1B fees, which range from $5,720 to $8,970 depending on the company size and on if premium processing is used. While premium processing is always advisable in these cases, it is imperative if the employee stopped working before the transfer. The immigrant can start working for the new organization as soon as USCIS receives the petition for transfer.

Alternatives for H-1B workers to remain in the US

There are occasions in which finding a job and filing a visa transfer within 60 days is difficult. Particularly, if there is a layoff wave going on that causes an usual number of workers to be looking for positions at the same time. If finding a company to sponsor your H-1B visa is challenging, here are some alternatives so you can remain in the US lawfully:

Cap-exempt H-1B organization

Finding a job in a company not subject to the quota-based rule for H-1B visas may be easier than finding a job in a cap-subject company (any for profit organization). Therefore, it may be an interesting compromise to find a position in a research institute, University, or any non-profit organization. Even if this is not your ideal plan, it will allow you to continue living and working in the United States, and will buy you time to plan your next steps – for example, file your own green card as described at the end of this article.

Go back to school (get an F-1 visa)

If everything else fails, you can always apply for a US degree program and obtain a student visa (F visa) through your academic position. This is a big change in your life, as you will not be allowed to work except in a few specific cases. However, this will allow you to remain in the US and plan what to do next. For those who were thinking into going back to school, this option may not be a bad idea!

Create your own business and get H-1B through it

There is an option for you to set up a company and obtain a visa through it. However, this options is complex and risky. It is complex because building a company cannot be done overnight as it involves a series of steps. Additionally, it is risky because USCIS will scrutinize your case and they will evaluate if the company was created with the purpose of obtaining a visa. If they decide that is the case, they will deny your visa. You can read more about this option here.

Laid off H-1B workers: Options for workers with ongoing green card process 

H-1B worker with approved I-140 an Visa Bulletin not current

If your I-140 petition had been approved by the time you were laid-off, you have an interesting option called Compelling Circumstances, or Category (c) (35) that may be used to obtain an EAD even if you cannot apply for adjustment of status yet.

This is valid for employees on visas such as H-1, O-1, L-1, or E-3, if they are the principal beneficiary of an approved I-140 and their date is not current in the Visa Bulletin. You would need to demonstrate compelling circumstances, which in your case it can easily be done by claiming financial loss due to unemployment.

If your petition is approved by USCIS, they will issue an Employment Authorization Card (EAD) for up to one year. You can read all about it in this official website.

H-1B worker with I-140 approved and Visa Bulletin is current

You are in a decent position because you can file your adjustment of status and request a temporary EAD card to continue working, using form I-765. However, EAD cards may take a few months to be issued and you need it sooner than that to avoid being forced to unemployment.
In those cases, you can submit an Expedited Request to USCIS after you file your adjustment of status with form I-765 for EAD. 
Once you submitted your application and have obtained a receipt number, contact Emma (USCIS’ virtual assistant) or call 800-375-5283 to place this Expedited Request. As a reason for the request, you may claim “severe financial loss” as you cannot legally work to sustain yourself and your family.

All workers in visas: Take your future in your own hands 

A layoff wave is a wake-up call reminding us how nobody is essential for companies and they can get rid of us at any moment. For immigrants on a visa, their immigration status is tied to their job. Therefore, being affected by a layoff means they not only lose their wages but also risk losing their immigration status. My recommendation to all workers in visas such as H-1B, F visas (on OPT), or similar ones, is to consider a permanent solution to this problem. Currently, there are two green card categories that stand out: EB-2 NIW (National Interest Waiver) and EB-1A. These two green card categories have a few things in common, such as:

  • They are for highly skilled individuals
  • Applicants do not need company sponsorship
  • They can apply without a lawyer (DIY application!)
  • If successful, petitioners will get permanent residency and immigration status will not be bound to a job
There is no better time to start working on your do-it-yourself, self-sponsored green card petition than now. The process takes months (the timeline is somewhat unpredictable) and it is best to go through it without being on a hurry due to external circumstances. 

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