Fired during the H-1B working period? Take heart of these life-saving rules!
Abstract: We have recently received numbers of inquires from many H-1B workers who were suddenly laid off, and lacked the proper means to maintain legal status in the U.S. This article will provide detailed guidance for all your questions.
In recent months, many large corporations such as Uber, WeWork, and Deutsche Bank have laid off a large number of employees, and this is inevitably dire news to the H-1B workers! Being laid off by the company also means the loss of the H-1B status and the H-1B workers are faced with the possibility of leaving the U.S. unwillingly.
A little piece of useful knowledge here, “Grace Period”. Here, we want to clarify the misconception that you can not continue to stay in the U.S. once you’ve been laid off. In 2017, the Department of Homeland Security had implemented a policy (60-day grace period) that allows laid-off H-1B workers to seek new employment, change the status, or decide to leave the U.S. in a transition period. Therefore, H-1B workers that have been laid off can utilize the grace period to seek new employment or change to other status. Please note, not all applicants will be granted the 60-day grace period. How to properly calculate the grace period? Please read our article “Must leave after H-1B lay off/resign? More in detail on the 60-day grace period.”
We are going to explore the following options to help those that have been laid off to properly maintain their legal status in the U.S.:
1. Change to Non-immigrant Status
A. H-1B Transfer
Upon receiving the layoff notice, those who are fortunate enough to find a new position can request the new employers to submit the H-1B transfer petitions on their behalf within the grace period. As soon as the new employers receive the H-1B receipt notices, the employee can apply the Portability Rule to start working for the new employers without waiting for the approval of H-1B transfer petitions. For more information on H-1B transfer, please read our article “H-1B transfer adventure? What do you need to know?”
If you want to know your H-1B transfer petition results soon, you can also apply for a premium processing service. After selecting the premium processing service, USCIS will usually take about fifteen business days to notify the applicants of the petition results. For more information on premium processing, please read our article “Should I opt for premium processing for the H-1B petition? Premium processing FAQ & analysis”.
It is worthwhile to note the importance of finding a trustworthy new employer. Amid the chaos, many applicants have joined small-size companies, and given the lack of time for preparation, many of them have received RFEs due to insufficient materials in the initial H-1B petitions. How to respond to the H-1B RFEs, please read our article “H-1b Wikipedia and RFE Case Study”.
B. F-1 Student Visa
90-day rule: In addition to maintaining the H-1B status, you can also submit a change of status application. An important note: Please be mindful of the “90-day rule” for the “change of status” in the U.S. from one type of non-immigrant status to another type of non-immigrant status.
90 days rule refers to when an applicant enters the U.S. with a non-immigrant visa and hoping to change to another type of non-immigrant or immigrant visa, and within 90 days submitting the change of status application, in this case, it will be concluded as “presumption of misrepresentation” (a presumption of fraud if a person violates his or her nonimmigrant status or engages in conduct inconsistent with that status), and the application is likely to be denied. Therefore, applicants that need to change the status have to plan and be mindful of the timeline. To find out more about the “90-day rule”, please read our article “What to do if you are not selected in the H-1B lottery? Find out more about “Change of Status” within the U.S.”
If you can’t find new employment for the H-1B transfer, you can also consider the option of changing the status to F-1 student status. To do so, the applicant has to obtain an I-20 from a school. For more information, please read our article “What to do if you are not selected in the H-1B lottery? Find out more about “Change of Status” within the U.S.”
To all applicants that are planning on working with CPT, please note that you will likely be faced with assumptions of abusing the CPT, illegal stay, and RFE on CPT issued by the USCIS. For how to respond to the RFE, please read “OMG! I received the notice for CPT RFE!”
C. B-2 Travel Visa
You can also apply for the change of status to a B-2 travel visa status within the U.S. When submitting the B-2 application, the applicant needs to provide the USCIS with evidence explaining the need to change to B-2. Besides, please pay close attention to the 90- day rule as we have mentioned in the above paragraphs. For more information, please read our article “What to do if you are not selected in the H-1B lottery? Find out more about “Change of Status” within the U.S.”
In addition to the above solutions, for the applicants with spouses, you can also consider applying for the spouse visas to maintain your status in the following:
D. H-4 Visa, F-2 Visa, L-2 Visa, or Other Types of Spouse Visa
Under normal circumstances, a spouse visa does not permit the visa holder to work. However, there are exceptions. For example, if the I-140 petition for the H-1B worker is approved, the H-4 visa holder can then apply for an H-4 EAD and start to work upon the approval of EAD.
2. Change to an Immigrant Status
The most common immigration visa is family-based immigration, among which the marriage-based green card is the most common. U.S. citizens or U.S. green card holders can apply for the green cards for their spouses. Moreover, according to the visa bulletin in November 2019, the applicant born in Mainland China can submit the I-485 simultaneously with I-130. Those who want to submit the marriage-based green card application must now seize the opportunity!
To understand more about the application process for the marriage-based green card, please read the following article “To obtain a green card through marriage, here is a few know-how!”, “Family-based Immigration- how to find my sponsor? It’s time to reunite with your loved ones and put an end to cross-continents separation.”, and “Is my medical report form effective? Summary: Starting on November 1st, 2018, these are things that you will need to take note of!”
Applicants that want to work: If according to the visa bulletin, you can submit the I-485 simultaneously with I-130, then at the same time, you can also submit the EAD application and advanced parole application. Upon the receipt of the EAD and Advance Parole Combo Card, the applicants can immediately start working legally and freely leave and enter the U.S. For more information, please read our article, “How to travel and return to the U.S. while your I-485 application is pending?”
Lastly, we sincerely wish all H-1B workers success in maintaining your legal status, and to face any unexpected situations with calm!
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Attorney Hui Zeng is a senior partner of Zeng Law Group, PLLC in New York. Attorney Zeng was named as the annual Rising Star for three consecutive years in 2017, 2018, and 2019 by Super Lawyers magazine of Reuters. Only about 2.5% of practicing lawyers in the U.S received this honor. Attorney Zeng was also selected as 2018 Leading Women Lawyers in NYC by Crain's New York magazine.
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