Discover the crucial pathways available to nonimmigrant workers when facing the unexpected challenge of job loss. Explore the options that can help navigate this transitional phase with confidence and ease.
How does a nonimmigrant worker apply for an extension of stay or change of status following termination of employment?
Nonimmigrant worker job loss can be challenging. Taking advantage of the available resources and legal avenues can lead to a smoother transition.
U.S. Citizenship and Immigration Services (USCIS) is providing information for nonimmigrant workers who face job loss, either voluntarily or involuntarily. These workers have options to stay legally in the United States based on existing rules and regulations.
We’ve put together some great options for nonimmigrant workers who want to stay in the United States after employment. We’re confident we can help you find the perfect authorized stay solution. Please note that not all options below provide employment authorization.
What are the requirements in order to qualify for the 60-Day Grace Period?
Workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents) are allowed a discretionary grace period. This period permits them to be considered as having maintained status following the cessation of employment. The grace period lasts for up to 60 consecutive calendar days or until the end of the authorized validity period, whichever is shorter. To know more about the grace period, you can refer to 8 CFR 214.1(l)(2).
During this period, workers may be able to maintain their nonimmigrant status. This applies if a new employer timely files a petition on their behalf with an extension of stay request. For example, an H-1B change of employer petition for a worker in H-1B status.
Workers may be able to remain in the United States in a period of authorized stay. They can do this if they timely file an application to change to a new nonimmigrant status. This new status can be, for example, B-2 visitor nonimmigrant status. Workers can also file an application for adjustment of status, if eligible. See below for a detailed overview of options.
Sometimes, workers are unable to timely file a change of status application. Or, they cannot find a new employer who timely files a change of employer petition for the worker. In those cases, they may have to leave the United States at the end of this grace period.
Portability to a New Employer: Is it easy to switch jobs on H-1B?
Portability rules permit those in H-1B status to work for a new employer, pending a new USCIS petition. Then, they do not have to wait for the petition to be approved.
Also, a worker with an adjustment of status application (Form I-485) that has been pending for at least 180 days with an underlying valid immigrant visa petition (Form I-140) has the ability to transfer the underlying immigrant visa petition to a new offer of employment in the same or similar occupational classification with the same or a new employer.
Understanding the nuances of nonimmigrant worker job loss can help you make informed decisions. This applies whether you leave the U.S. or seek alternative employment opportunities.
Workers may have up to 60 days of a discretionary grace period. During this time, they can apply to change their non-immigrant status. That may include changing status to become the dependent of a spouse (e.g., H-4, L-2). Some individuals in a dependent nonimmigrant status may be eligible for employment authorization incident to status. This includes spouses of E-1, E-2, E-3, or L-1 nonimmigrants. In addition, some spouses of H-1B workers may be eligible for work employment authorization if certain requirements are met.
Other possible nonimmigrant options include student status (F-1) or visitor status (B-1 or B-2). By statute, B-1 and B-2 nonimmigrant visitors are specifically precluded from “performing skilled or unskilled labor” in the United States. Certain F-1 students, by regulation, may engage in limited employment.
Change of Status and Employer: What happens if you switch jobs on a work visa?
Workers may use the grace period to seek a new employer-sponsored nonimmigrant status in the same or different status. Depending on the situation, an L-1 worker may be eligible for new employment under the TN, E-3, or H-1B1 classifications.Filing a non-frivolous change of status application on time can prevent unlawful presence from accruing until the application is adjudicated. However, such a filing alone won’t grant employment authorization in the new position during the pendency of the application. Moreover, it won’t extend employment authorization if the original classification is no longer valid. Some petitions may be eligible for premium processing for an additional fee.
Adjustment of Status: Does USCIS forgive a change in employment?
Some workers may be eligible to file a self-petitioned immigrant visa petition concurrently with an adjustment of status application. Examples of immigrant classifications that are eligible for self-petitioning include:
- EB-1 Extraordinary Ability
- EB-2 National Interest Waiver
- EB-5 Immigrant Investors.
Workers with a pending adjustment application are generally eligible to remain in the United States. They could obtain an Employment Authorization Document (EAD).
Period of Authorized Stay – Compelling Circumstances Employment Authorization Document
Workers who are the beneficiary of an approved employment-based immigrant visa petition (Form I-140) may be eligible for a compelling circumstances EAD for up to one year if they:
- do not have an immigrant visa available to them in the Department of State’s Visa Bulletin, and
- face compelling circumstances.
Note: A Compelling Circumstances EAD is a discretionary measure. It is meant to help certain individuals become lawful permanent residents. This measure prevents the need to leave the United States abruptly. Workers who begin working on a Compelling Circumstances EAD will no longer maintain nonimmigrant status. They will be considered to be in a period of authorized stay. They will not accrue unlawful presence in the United States while the EAD is valid.
Expedite Criteria: Does USCIS accept expedite requests? How does it work?
Some circumstances may warrant expedited adjudication. This includes applications to change status to a dependent status that includes eligibility for employment authorization. For example, an application to change status from H-1B to L-2 may be eligible for expedited adjudication. That would prevent severe financial loss.
Departure from the United States: Can you leave the US on a work visa?
Workers may choose to depart the United States. For H-1B and O workers who chose to depart the United States after involuntary cessation of employment, the reasonable costs of transportation to the worker’s last place of foreign residence must be borne by the H-1B employer or by the O employer and O petitioner, as applicable. See 8 CFR 214.2(h)(4)(iii)(E) and 8 CFR 214.2(o)(16).
Once abroad, H-1B holders may seek U.S. employment and readmission for any remaining period of their H-1B status. Those seeking another classification for which they may be eligible can complete the application or petition process abroad. Then, they may seek readmission to the United States.
Nonimmigrant worker job loss doesn’t necessarily mean the end of your American dream. There are pathways to overcome this setback and continue your journey.
We provide assistance to nonimmigrant workers and employers in the form of support for termination of employment, assistance with filing for unemployment benefits, and assistance with filing for work visas. We provide information on the options for nonimmigrant workers, including termination of employment. Hiring a lawyer for your immigration law needs? Contact the immigration law firm of Shepelsky Law Group to discuss visa sponsorship, work visas, nonimmigrant visas, and more.
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