Losing your job while in the United States on an employment visa can be a stressful and scary experience. Not only did you lose your job, but you also have to deal with the effect of that loss on your immigration status!
This is mainly because your immigration status depends on your employer; therefore, if you lose your job while on a work visa, don’t panic.
We’ve put together this guide to empower and inform you about maintaining your immigration status and exploring all available options. You will understand some vital information to remember and the following steps to take in such a situation.
Do I Need to Leave the Country if I Lose my Job?
If you lose your job while on an H-1B visa, you are immediately considered “out of status” in the United States. This is because the H-1B visa category requires the holder to be actively employed to maintain lawful status.
This rule also applies to most work visas in the U.S., including those in the L, O, H, and TN categories.
When an employer lays off an employee, the employer must 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 you are considered out of status, it doesn’t necessarily mean you must leave the United States or risk deportation immediately.
The Grace Period
If you lose your sponsored job, there is generally a 60-day grace period for work visa holders to find a new job before leaving 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 country during this 60-day window or until their I-94 expiration date while they look for other jobs.
In addition to the 60-day grace period, USCIS considers 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 days.
Steps to Take if You Lose Your Job on a Work Visa
1. Leave the United States
Not always, but some immigrant workers may leave the U.S. immediately after their employment ends. Discuss travel and relocation expenses with your company if you choose this path.
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 their last country of residence.
There are other visa types you can apply for and change your status. However, ensure you don’t accrue six months or more of unlawful presence before departing the United States; you may be eligible to apply for visa application options at the nearest overseas U.S. Embassy or consulate.
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.
This guide will explain two key concepts to remember when searching for a new job: “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 can remain in the United States 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, 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 file Form I-129, Petition for a Non-immigrant Worker with USCIS, to continue the process. If USCIS approves the petition, your existing H1-B visa will transfer to your new employer.
Portability simplifies changing employers because you are generally not required to apply for an entirely new H1-B; you can maintain your existing visa under a new sponsoring employer.
Starting your employment search and application process before your grace period expires is essential. Given the time it takes to file and receive approval for a new LCA, starting the process at least 2 weeks before your grace period expires is safest.
The LCA must be approved before the grace period ends to avoid 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.
3. Apply for a Different Visa Type
If you can no longer maintain your work visa status, it may be possible to apply for and obtain a different type of visa to stay in the United States.
B-1/B-2 Tourist Visa
Some individuals may extend their time in the U.S. and switch their status to a B-2 tourist visa to wind down their affairs after 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 Non-immigrant Status.
Approval of this request is always based on USCIS and not guaranteed, but you’ll maintain your status while the government processes your Form I-539.
In addition, if USCIS denies your visa transfer request, you will have 30 days to leave the country, after which you will be considered to be in the U.S. “unlawfully.”
Another positive aspect of transitioning your status from a work visa to a B-1/B-2 travel visa is that it allows you to continue your employment search in the U.S.
According to USCIS, searching for employment and interviewing for new positions are permissible activities under the B-1/B-2 visa. In this way, you can remain in the U.S. and buy some additional time to find a new employer willing to sponsor you for a work visa once again.
Student Visas
Individuals may use a career change to return to higher education and build new skills. If you want to continue your studies in the U.S., you can also file Form I-539 to adjust to an F, M, or J student visa.
To be eligible for a student visa, you must 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
Suppose your spouse is also an H-1B visa holder or has another visa status that allows them to work or study in the U.S. with dependents. In that case, you may also be eligible to apply for H-4 or another dependent status as a dependent spouse.
Certain H-4 dependents can also obtain an employment authorization document (EAD) to work in the U.S. This status generally applies to spouses of H1-B visa holders undergoing the employment-based green card process.
TN Visas
Mexican and Canadian nationals are generally eligible to apply for a TN (Trade NAFTA) visa, allowing them to work in the U.S. for three years, with renewal options.
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.
Suppose you have a pending employment-based petition (Form I-140) already in progress. In that case, it is essential to speak with an immigration attorney to understand how changing your employment visa status may affect your current application.
O Visas
Certain professionals who demonstrate “extraordinary ability” may be eligible to apply for an O-1 visa, a unique employment visa for those at the top of their field. The eligibility requirements for O-1 visas are more particular and stringent than those for other work visas.
Still, the application does not require a labor certification from the Department of Labor or a lottery process like the H-1B.
Family-based Immigration Options
Suppose 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.
In that case, 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.
Spousal
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.