On Dec 07 2022 by Staff

Podcast Episode 31: H-1B Layoff Information for Employees

With a large wave of layoffs reported in November 2022, many H-1B visa holders worry about what their next steps should be. In this podcast episode, Anu Nair speaks with partner Bill Stock and senior associate Maria Mihaylova to discuss the potential impact of recent layoffs occurring in the different industries and how they affect H-1B employees. Here is a transcription of the discussion between Anu Nair, Bill Stock, and Maria Mihaylova.

Anu Nair: Hi everyone! Welcome to our podcast about layoffs for H-1B employees. With me today, I have Bill Stock, who is a partner at the firm, and I also have one of our supervisory attorneys, Maria. So, let’s get started. I know we have, and we’ve all been receiving a number of questions from panicked H-1B employees as they hear about layoffs affecting a variety of different industries. Now, thankfully we haven’t had too many of our clients impacted by this, but it is becoming a hot topic. And so, what we done is provided some detailed information for employees that are either currently going through the process or are worried about what will happen if there is a layoff, and they just want to be proactive in figuring out what their options are for in the future. So, we’ve separated our podcast into three different areas. One is the short-term impact and we’re going to cover what you need to be doing immediately once you have learned that you’ve been laid off. What you can do for medium-term solutions in making sure that you can come back to the United States in a variety of different visa statuses. And then we’ll talk about the long-term term solutions and what the H-1B layoff and what the impact of the H-1B layoff would be on your green card process and what alternates you have. So, starting with the short-term solution, Bill I’ll turn to you first. Can you take us through what it means for an H-1B employee to be laid off and specifically, how long can they stay in the United States after they receive notification of their termination.

Bill Stock: Thanks, Anu. This issue you have to be aware of is that H-1B, like most temporary workers statuses, requires a person to be doing the thing that their visa requires them to do, which for an H-1B is to be working. So, technically as soon as an H-1B worker is terminated and can no longer be working at their employer, that H-1B has ended their status. However, the regulations do recognize that particularly in a situation like a layoff, it is unfair to people that they have to suddenly leave the United States. So, the regulations do provide a grace period, they indicate that a person is considered to be maintaining H-1B status for purposes of getting a change of employer or some of the other options we’re going to discuss. And that, that grace period last 60-days from the day they stop working. So that’s an important thing that changed the regulations back in 2017. We certainly see it take effect in a number of different situations, and we regularly see employees able to take advantage of it. So the good news is even though it’s never a good thing to have lost your job, hence the need to be out in the job market, there is now this flexibility in the regulations which says, even though you’re no longer maintaining status for a period of 60-days we will treat you as if you were maintaining your status.

Anu: So, Bill, what does that mean in terms of the next options that are available for people? Do they have to get another H-1B employer to file for them within 60-days? Can they get an employer to file for any other status for them like an O-1, or would it be possible for them to start school on an F-1 and change their status to that within that 60-day period?

Bill: Yeah, it’s important that the 60-day period sets a limit of when they need to file an application. So, a new employer would have to file a petition, it wouldn’t necessarily have to be approved within that 60-day period. The person could apply for one of those other statuses you mentioned, right. They might go to school, they would need the paperwork to change status to F-1, and they need to file a change of status request before the 60th day in order to be maintaining a lawful status on the day they send in that application. And often times if we don’t have any other status, we will recommend that person file a change of status, even if that’s just so that they can wrap up their affairs, take care of their apartment lease, their car, whatever other practical issues they need to take care of that may take more than 60-days to wrap up in these kinds of situations.

Anu: So, Maria, I’m going to turn to you with questions about the derivatives of these H-1B employees. What are the options for the spouse of an H-1B employee or the children of an H-1B employee? What can they do during the 60-day grace period.

Maria Mihaylova: During the 60-days grace period I would say that spouses that are in H-4s of those H-1B holders can remain in the U.S., for sure. Children can also remain in the United States if they’re in enrolled in school, I would go as far as to say that they do not have to be withdrawn from school and can continue attending during the grace period. But I would venture to say that if the spouse of an H-1B employee that has been terminated has a work authorization document, whilst this is a valid document that has been issued by immigration, and technically there’s an argument to be made about being able to continue to use that document during the 60-days grace period and continue employment, should be mindful that that card technically is linked to their status which is upon termination exposed to being risked to be lost. So, I personally would suggest that H-4 spouses do not use their EAD cards if their H-1B principles are actually terminated, even during the 60-days grace period. But they can alternatively explore their own work authorization options. If the person must, must, must continue working, there are some arguments that could be made, but that should actually be closely discussed on an individual basis. And when it comes to children, now luckily children carry a lot less burdens when they’re smaller, and they don’t necessarily get affected as much during the 60-days grace period and there aren’t really many changes that occur in their lives.

Anu: So, I just want to give you a hypo and help me play this out for the people who are listening. If you have an employee who comes to you and says my company gave me notice that they are going to terminate me on January 30th, but they’re going to keep me on payroll until the end of February, and my current I-94 will expire the end of March. So, how would you counsel the client or the foreign national with respect to when the grace period starts and when their grace period would end?

Bill: So, it’s important in the hypo to understand that it is the performing of the activity that your visa requires that really is most important. So, when you’ve stopped working is when the 60-days would apply. Now there are some separate benefits the fact that your I-94 hasn’t expired means that you do get the full 60-days grace period. The fact that you’re getting paid during that time means that you won’t have some of the practical issues that you would have if you didn’t have income during that period of time. But your status really ends the day your employer has you stop working and you should calculate that conservatively and try and get a new employment or a new change of status application filed within that 60-days. There’re certainly some arguments to be made, that if you’re on a severance period, particularly if the severance requires you to be available to the employer, we might stretch that out if you are having a delay in terms of getting a new employer to sponsor you, but I think prudentially we recommend that you count that time from the time from the time of stopping work, even if it is for an extended period of time.

Anu: So, what about a situation where someone’s work terminates them as of January 30th and there I-94 expires February 15th.

Bill: Right and the importance of the grace period is remembered as the shorter of 60-days, or however much time is left of your H-1B. So, the 60-days grace period cannot extend your H-1B status more than it already exists. So, in your hypothetical, actually on that February date when your I-94 expires, you would stop counting the grace period. So, in that situation you really need your change of employer, or some change of status application filed before your I-94 expires.

Anu: So, to recap, you want to make sure when your 60-days start you want to confirm when your 60-day ends because that’s based on your I-94 and within that time period you either want to file a change of status that can be to any possible petition, including a B-1 for that short-term extension. You could potentially file as a derivative if your spouse has their own, let’s say H-1B or F-1, or you can file an adjustment and will cover that a little bit in greater detail, actually, in the long-term solution section.

So, let’s move onto the midterm solutions. Let’s assume that we have employees who are not able to get a new employer to file a new petition during that 60-day grace period, or they’re not able to file any change of status during that 60-day grace period, and now they’ve departed the United States and are trying to come back. So, I’m going to actually, Maria, turn to you first. What are the rights that the employees have if they do have to depart the United States?

Maria: Excellent question. The biggest benefit and silver lining to being terminated is that the H-1B sponsoring employer also carries the responsibility as part of properly documenting the termination to cover the reasonable cost for a one-way return ticket for the actual H-1B employee. Normally those issues gets adjudicated and resolved between the employer and the employee as part of the exit packages, but provided that their costs are covered and we have an employee that’s already outside of the U.S., their midterm solutions and immediate solutions to being able to return to the U.S. would be to continue looking for employers, or various hooks that they can actually use to lawfully re-enter and have a valid purpose in the U.S.

Anu: So, can you take a through some of the cons of waiting those 60-days departing the United States and then trying to get an employment offer and coming back versus really hustling and trying to get something within the 60-day grace period.

Maria: There are a lot of cons and employees should be very proactive during their 60-days grace period and trying to find a replacing employer. For one, if they’re in the U.S. in the grace period for those 60-days, USCIS automatically will allow them to change employers with the full benefits that a change of employer petition comes, which means that upon receipt of the FedEx package in their hands, the person will be authorized to start working with their new employer and they don’t have to wait for approval. This will limit costs that would be otherwise required to bring the family for those that have dependents with you abroad, or the cost of actually having to try to find a solution and change status. If you’re outside of the U.S. and you are able to find an employer, you have a few problems. The biggest one is that the employer has to file a petition, but you cannot start working for that employer until it’s approved and until you’ve actually been able to come back to the U.S. where you run into other issues. If you have an existing H-1B visa and your passport it’s a little bit easier. You can use that existing valid visa with your approval to enter. But for those people that hadn’t, you know, that haven’t traveled for a while, or don’t have a valid visa stamps, they would also have to go through an embassy. And currently with the status of operations of various consulates and skeleton crews  that are trying to run operations because of staffing needs, it’s extremely hard to actually secure a timely appointment at an embassy. So, most definitely not being proactive about your 60-days and actually finding that employer to transfer to, and take advantage of the fact that you don’t need an approval in order to continue maintaining your H-1B status and port, that would cost foreign nationals, not only travel expenses, which are only partially covered by the benefit of being covered their return ticket at a reasonable cost by their former employer, but also potential delays for any future U.S. employers. And U.S. employers that have immediate needs may find it a little bit harder to have to wait around for someone that has to go through the consular process to be onboarded. It’s much easier to have someone who’s in the U.S. to transfer.

Anu: And it’s a question I’m going to pose to both of you. If you have an employee who is on an H-1B, and let’s say there’re in the first three years of H-1B, they were laid off, aren’t able to find a new employer, have to depart the United States, and it takes them a year, let’s say two years, to come back to the U.S. to find a new H-1B employer. Do they have to enter the lottery again, or can they still benefit from that first lottery pick and so they don’t have to wait, go through the lottery system, and start their employment on October 1st?

Bill: You’re right that the person doesn’t have to go through the lottery. So, the fact that they were picked in the lottery is actually a benefit to them up until they have used six full years of H-1B time. So, at any point a person who is in that situation and has been outside the United States for one year has two different options. One option is they can come back to the United States with the remainder of H-1B time that they didn’t use when they were in the U.S. before. So, that might be one year, or two years, or six years. Or they can go through the lottery again, in which case they are entitled to a new six years, but of course, if you have a person who has a green card process ongoing, they may not even have to worry about the 6-year limit, and in that case they can continue to come back even though they might have used 6 years or more than 6 years before they left, they continue to be eligible for the benefit of extending that H-1B beyond the 6 years. And that happens whether they been outside the United States for a full year, or less, or more.

Anu: Great! So, in some, you know, the best-case scenario, you find a job within 60-days. If you can’t find a job within 60-days and need to depart the United States, you do have options to re-enter. It can take some time, especially with delays at the consulate, but one of the benefits is that you may not have to re-enter the lottery and could start your job as soon as you get that H-1B visa stamp in your passport. So, now let’s turn to long-term solutions, people that may have just started the green card process with the employer that’s laid them off or are pretty well into the process and we’ll kind of separate them based on where they are in the process. So, Maria, let’s say your H-1B employer was your I-140 petitioner and they’re just starting the process, I-140 hasn’t been filed or approved. What options does the employee have to continue an I-140 process?

Maria: Not many, unfortunately. Unless the employer that’s letting them go is also willing to somehow keep an offer open for them that’s for a position that’s being terminated. That doesn’t happen in real life and in most situations, if you are an H-1B employee and your employment terminates before the I-140 has been approved, you cannot actually rely on any part of that green card process and the new employer will have to start the work from scratch. You would not be able to derive any benefits from the work that was done up to your termination as an employee.

Anu: Do you still get to keep your priority date? If let’s say your previous employer had started or at least filed the I-140 petition?

Maria: I believe that if the petition was approvable when filed and it goes through you get to keep it, but if the I-140 is withdrawn by the employer before it’s adjudicated, you do not get the priority date.

Bill: Maria, you’re exactly correct, that if it is approvable when filed, if the employer does not withdraw it, it can still be approved and if it was already approved you’re fine, obviously, even if it’s withdrawn. Though if the employer does withdraw it before it is approved and before 180 days, then you’re not going to be able to benefit from that I-140.

Anu: Bill you actually segued quite nicely into my second question, which is if the I-140 is approved you had mention that if it’s before 180 days after the approval you don’t get the benefit of the priority date from the first filing, is that correct?

Bill: So, you don’t get to use that I-140 for anything in particular, but the priority date of an approved petition of the earliest approved petition that you ever had is always available to you in a future petition. Whether it’s 180 days, that doesn’t matter for the keeping the priority dates. So approved I-140s, no matter how short it took for them to be approved, no matter how long ago it was, those are always going to give you the benefit of the earliest available priority date they have to you.

Anu: Maria, I’m going to give you a super easy question, but it is something that a lot of clients still ask about. What if I have filed for my green card and then have been laid off with my H-1B employer. One, do I have to leave the country, and two, can I still get that green card approved if I no longer have a job offer with the I-140 employer?

Maria: That will depend on how fast the person can find new employment because when the person is trying to obtain permanent residency through employment-based categories, their whole hook and path to the green card is their ongoing employment in the U.S. So, if they get laid off, they don’t have to immediately depart, and in fact, we would prefer them to stay in the U.S. and look for an employer who can actually onboard them and potentially, hopefully, depending on how much time has passed, can give them either a new I-140, if they have been laid off relatively closely to being terminated, or can onboard them after the 180th day at which point, the person will be portable and can leverage that new offer in certain circumstances to not have to go through and a new green card process and just finish out their adjustments in the U.S. So, certainly people that have pending green cards are better advised to remain in the U.S. as supposed to depart and continue to look for employment and perhaps even try to expedite their work authorization documents, depending on really, where they were born and whether they’re in a quota that’s backlog, or a quota that’s actually current. Because all of those factors would affect their ability to move the cases along.

Anu: So, just to make sure that we understand, if you are just starting out the perm process you don’t get any benefit, you’ll have to restart the process with your employer. If you have an I-140 approved, you get the benefit of using that priority date or maintaining that priority date for future I-140 approvals. And if you have your green card filed, you want to make sure that you are staying in the U.S., finding a new employer, finding new employment in same or similar occupation, and being able to continue that green card process.

What about people who are able to find an H-1B employer, but not someone willing to sponsor their green card? Bill, can you take us through some self-sponsored options for people who are not able to find a petitioning employer?

Bill: Absolutely. There’re three types of visas that can be, of immigrant visas that can be filed by the person themself. The first one is called the EB-1A, and that is for persons of extraordinary ability in any particular field. So, that might be in the arts, in entertainment, in business, in a STEM field, the kinds of criteria that we want to show are that you’re one of the small percent at the top of the field. Now that may be because you’re in an organization, which is at the top of the field that you had a significant position in that organization, that you have some kind of a public reputation, either in your industry or more broadly. And so, those are criteria that we look at for that EB-1A.

Another self-sponsored position is called a National Interest Waiver. In that instance what we’re asking for is for the immigration service to allow you to immigrate without an employer sponsor. That’s what the waiver is, waiving the employer sponsor. In those situations, you don’t have to be of EB-1A quality, but you do have to show that you had some impact on a field that is important in the United States. Again, that could be a STEM field, that could be whatever you were working on, could be on process improvements. There are a number of ways in which we can make a National Interest Waiver argument, but we also have to be able to show that you’re somehow very well positioned to be able to meet that need. So, that’s the National Interest Waiver. The key requirements are that you either have a master’s degree or higher education, or that you have what we call exceptional ability, which might be 10 years of experience and certain kinds of recognition that we can build off of.

And then the final option for self-sponsoring is EB-5. That is for folks who have a significant investment that they can make in the United States. The amount currently is almost a million dollars at a minimum, but by investing that in an enterprise which would create jobs for U.S workers, you can use the EB-5. So, that may be another option to explore, particularly if you have significant equity built up in a house or you have significant savings for when you’ve been in the United States. We may be able to explore those EB-5 options.

And then, you know look, the final thing that I would point out as an option. If you have an I-140 approval and if you’re just really striking out in the job market, there is a provision which was added in 2017 to allow people in that situation to apply for an EAD, due to what’s called extraordinary circumstances. We have not yet seen a lot of people using this program, but if it was a situation where you’ll be, sort of no other options, it may be an option to provide work authorization for yourself. Though it’s not immediately clear how that program will provide a legal status and kind of a path forward for individuals. So, we would certainly want to explore all four of those options with anyone who is laid off and thinking of about options after that layoff.

Anu: Well, thank you, Bill, and thank you, Maria, for all of the very detailed and helpful information and hopefully for the people who are listening to this podcast this was helpful to you. As always if you have any suggestions or recommendations to topics that you’d like to hear covered in this podcast, or for more detailed information about a topic we’ve covered you can email us at podcast@klaskolaw.com. We also have a lot of content on our website. We frequently publish articles, blogs, and send out client alerts. So, we do recommend that you go onto our website and sign up for all of these updates. Thank you everyone.

If you’re an H-1B visa holder that has been recently laid off, schedule a consultation with one of our dedicated immigration attorneys. To learn more on what you need to know in the case of an H-1B layoff, read our current blog and infographic, here.

 

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