If you are a nonimmigrant worker who has been laid off, there are steps you can take to remain in the United States during a period of authorized stay. The United States Citizenship and Immigration Services (USCIS) has provided information and guidance on its website to assist nonimmigrant workers in this situation.
If your employment is terminated, you may be eligible to take one of the following actions:
- File an application for a change of nonimmigrant status
- File an application for adjustment of status
- File an application for a “compelling circumstances” employment authorization document
- Be the beneficiary of a non-frivolous petition to change the employer
If you are an eligible H-1B nonimmigrant, and your employer files a new non-frivolous H-1B petition on your behalf, you can begin work immediately after USCIS receives the petition and continue to maintain your H-1B status.
Your Options in More Detail
As you can see, there are four main options that are available to you if you were recently laid off on a nonimmigrant visa status. The options are explained in more detail below:
Change of Nonimmigrant Status – One of these options is to file an application to change your nonimmigrant status, which involves submitting an application to USCIS requesting a change to a different nonimmigrant visa category. For instance, if you were previously on an H-1B visa, you may be able to apply for a change to an F-1 student visa. However, to be eligible for the new visa category, you must meet the eligibility requirements and provide supporting evidence.
Adjustment of Status – Another option is to apply for an adjustment of status, which allows you to apply for lawful permanent residence or a green card while physically present in the U.S. This process is more stringent than a change of nonimmigrant status, and it takes longer to complete. However, with the adjustment of status you will gain a long-term right of residence in the U.S. and therefore stop worrying about your visa status.
Compelling Circumstances EAD – Alternatively, you can apply for an employment authorization document (EAD) based on compelling circumstances, such as a natural disaster, a serious illness or disability, or other unforeseeable circumstances beyond your control. You must demonstrate that you are facing an urgent and compelling situation that requires you to work.
Non-frivolous Petition – Lastly, you may be able to continue working in the U.S. if you are the beneficiary of a non-frivolous petition to change your employer. This means another employer is willing to sponsor you for a new visa category and has filed a petition with USCIS on your behalf. You can begin working for the new employer immediately if the petition is approved.
Things You Should Know
It’s important to note that if any of the above actions occur within the 60-day grace period, your period of authorized stay in the U.S. can exceed 60 days, even if you lose your previous nonimmigrant status. However, if you take no action within the grace period, you and your dependents may need to depart the U.S. within 60 days, or when your authorized validity period ends, whichever is shorter.
The maximum 60-day grace period starts the day after termination of employment and applies to both voluntary and involuntary termination of employment. The grace period also provides time for certain spouses of nonimmigrant workers to continue their employment if they have an Employment Authorization Document or are employment-authorized incident to status.
USCIS will determine whether the grace period applies to your case during the adjudication of the extension of stay petition, change of status application, adjustment of status application, or compelling circumstances employment authorization application. Petitioners and applicants should state in a cover letter that they request that USCIS favorably exercise its discretion to grant the up to 60-day grace period.
Nonimmigrant visa holders are eligible for the maximum 60-day grace period once during each authorized employer petition validity period. The grace period ends upon any departure from the U.S. Individuals who depart the U.S. during the maximum 60-day grace period must seek another immigration status that would permit re-entry.
How VisaNation Can Help You
The VisaNation Law Group team has an excellent track record of gaining approvals for all types of employment visas, including for those individuals that have been recently laid off. VisaNation Law Group attorneys offer free consultations to specific individuals and businesses looking to retain a law firm for employment-based immigration petitions as a courtesy to prospective clients. Schedule a consultation to get started today!