Maintaining Lawful Status In The U.S. After A Layoff

In the current economic climate amidst the almost daily announcements of layoffs, foreign national workers are at risk of losing their ability to stay in the U.S. In addition to the impact on temporary visa holders, layoffs also impact individuals in the employment-based green card process, many of whom have been waiting years to obtain a green card.

Below is a summary of the options for temporary visa holders, as well as individuals in the employment-based green card process, who are facing a layoff. In addition, an employer’s responsibilities when terminating foreign national workers is also addressed.

Options For Employees Affected by a Layoff:

H-1B Visa Holders:

H-1B visa holders are authorized to remain in the U.S. for up to 60 days after their last day of employment in H-1B status. During this 60-day grace period, the H-1B employee can look for a new job and employer sponsor. The new employer must then file an H-1B change of employer petition within the 60-day grace period. The H-1B employee is eligible to start working for the new employer upon receipt of the H-1B transfer petition with U.S. Citizenship and Immigration Services (USCIS).

An individual in H-1B status who is unable to find a new job and employer sponsor within the 60-day grace period will need to depart the U.S. before the end of the grace period. If this is not feasible and the H-1B worker needs more time to settle affairs in the U.S., they may file a Form I-539 application to change status from H-1B to B-2 visitor status for a period of up to 6 months. Alternatively, the H-1B employee might be eligible for another nonimmigrant status, such as H-4 status as the spouse of an H-1B visa holder, or O-1 status as an individual with extraordinary ability.  Any change of status application must be filed before the end of the 60-day grace period. We recommend avoiding international travel after a layoff and during the grace period, as this could jeopardize eligibility to transfer H-1B status to another employer. We also recommend keeping pay stubs and requesting an employment verification letter as evidence of the last day of employment in H-1B status.

TN Visa Holders:

Like H-1B visa holders, individuals in TN status are authorized to remain in the U.S for up to 60 days after their last day of employment. In order to stay in the U.S. in TN status, a new employer must file a new TN petition on their behalf prior to the end of the 60-day grace period. If this is not feasible, the TN visa holder must depart the U.S. and can apply for a new TN visa at the U.S. Consulate abroad (for citizens of Mexico) or U.S. port of entry (for citizens of Canada). Alternatively, the TN visa holder can file a Form I-539 application to change status to another nonimmigrant status, such as B-2 status as a visitor, H-4 status as the spouse of an H-1B visa holder, or O-1 status as an individual of extraordinary ability.

L-1 Visa Holders:

L-1 employees are authorized to remain in the U.S. for a 60-day grace period after the last day of employment. However, L-1 visa holders do not have the same flexibility to change employers, and must work for a company that is related to the L-1 employer sponsor, such as a parent, subsidiary, or affiliate company.  Alternatively, the L-1 visa holder can file a Form I-539 application to change status to another nonimmigrant status, such as B-2 status as a visitor, H-4 status as the spouse of an H-1B visa holder, or O-1 status as an individual of extraordinary ability.

Individuals in the employment-based green card process:

For individuals who are in the employment-based green card process, the impact of a layoff on their eligibility for a green card depends on which stage of the green card process they are in:

• PERM application process: If the employer has started the PERM application process or filed a PERM application on the employee’s behalf, and the application is pending with the Department of Labor, the employment-based green card process will need to be started over again with a new PERM application by the individual’s new employer.
• Form I-140 pending: If the employer filed a Form I-140 petition on the employee’s behalf, but the petition has not yet been approved, the individual is not eligible to retain the priority date from the PERM application filing.  The employment-based green card process will need to be started over again with a new PERM application by the individual’s new employer.
• Form I-140 approved, but no adjustment of status filed: If the employer filed a Form I-140 petition on the employee’s behalf and the petition has been approved, but the Form I-485 adjustment of status application has not yet been filed, the individual can retain the priority date of the approved I-140 petition for future I-140 petition filings, with limited exceptions. In addition, the individual will be eligible for additional extensions of H-1B status based on the approved I-140 petition.  In this scenario, since the Form I-485 application was not filed, a new employer will need to start a new PERM application on the individual’s behalf in order to sponsor them for a green card.
• Form I-140 approved and adjustment of status pending for less than 180 days: If the employer filed a Form I-140 petition on the employee’s behalf and the petition has been approved, and the individual filed a Form I-485 adjustment of status application that has been pending for less than 180 days, a new employer may or may not be able to “port” the individual’s pending I-485 application. Consultation with an immigration attorney is highly recommended in this scenario.
• Form I-140 approved and adjustment of status pending for 180 days: If the employer filed a Form I-140 petition on the individual’s behalf and the petition has been approved, and the individual filed a Form I-485 application that has been pending for a least 180 days, a new employer may be able to “port” the pending I-485 application. The employee’s position at the new employer must be in the same or similar occupation as the position for which the prior employer filed an I-140 petition on the individual’s behalf.  The new employer must file a Form I-485 Supplement J on the individual’s behalf in order to “port” the pending I-485 application.

Employer’s responsibilities when terminating foreign national workers:

H-1B Visa Holders:

As an H-1B employer, it is important that there is a bona fide termination of the employment relationship with an H-1B employee, which involves several steps. First, the employer must provide notice to the H-1B employee that the employment relationship has ended. The employer must also provide notice to U.S. Citizenship and Immigration Services (USCIS) that the employment relationship has ended, as well as withdraw the Labor Condition Application (LCA) filed with the Department of Labor (DOL), to avoid payment of back wages for any period after the employee is terminated. Fourth, the employer is required to offer payment of transportation of the H-1B worker back to their last place of foreign residence. Payment of return transportation is not required when the H-1B worker voluntarily terminates their employment prior to the expiration of the validity of the petition, or when the H-1B worker waives the payment of return transportation to their last place of foreign residence.

TN and L-1 Visa Holders:

There are no specific employer notification or compliance requirements when the employment of an employee in TN or L-1 status is terminated.  However, we recommend that employers notify USCIS that the employee no longer works for the company.

I-140 Petition Withdrawal:

The employer is not required to withdraw a pending or an approved I-140 petition upon termination of employment. If the employer wishes to withdraw the I-140 petition, it should consider the timing of that request carefully, as it may have adverse consequences for the foreign worker. If the employer requests to withdraw a Form I-140 that has already been approved for at least 180 days, or if an associated Form I-485 has been pending for at least 180 days, USCIS will not revoke the approved Form I-140 and the individual will retain the priority date from the approved I-140 petition. In this scenario, the terminated employee is eligible for additional H-1B extensions beyond the maximum six-year limit as well as retention of the priority date from the approved I-140 petition on their behalf. However, if the employer withdraws a Form I-140 that has been approved for less than 180 days, USCIS will automatically revoke the petition. The worker will retain the priority date for future I-140 petitions but will be unable to rely on the I-140 approval to qualify for H-1B extensions beyond the six-year limit.

The immigration attorneys at Ryan Swanson are available for consultations to discuss questions regarding the impact of a layoff on your nonimmigrant status, work authorization and/or eligibility for a green card. Please contact the Immigration Group to schedule a consultation.

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