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What To Do if You Have an H-1B and are Laid Off

Female employee upset

As the COVID-19 pandemic continues, layoffs are still happening as a result. For those with an H-1B Visa, not having a job could bring devastating consequences.

If a worker with an H-1B Visa quits voluntarily, the following information will not apply. However, you can still contact The Sekou Clarke Law Group to see how we can help you in your situation.

What Rights Does Someone With an H-1B Visa Have?

Most employees who have an H-1B Visa are considered to be “at-will” which means that the employer can lawfully terminate the employee at any time. However, the employee must not be treated differently compared to anyone else when it comes to termination procedures. That means that if the company is providing a severance package to the rest of the employees then you are entitled to it as well. If you learn that your employment is unlawfully being terminated, that’s when you need to contact an experienced immigration attorney right away.

What Should I Do First?

The biggest thing you can do is not to panic. Keeping calm will help you stay in the right mindset as you move forward.

Non-Revoked H-1B Visa

As long as your employer does not revoke your H-1B Visa, whenever your last day of employment is, you have up to a 60-day grace period where you can try and get another job. The key is you have to be actively looking for a job and prove that you’ve submitted applications, spoken in person or electronically with potential employers, or interviewed for a new job. The new employer would also need to submit a petition for you.

However, if you wait until the last minute and at day 59 submit your petition, United States Citizenship and Immigration Services (USCIS) will probably not grant your petition in enough time or grant you an extension. If this happens, you would have to return to your home country, get a new H-1B visa stamp before coming back to the U.S. to work for a new H-1B employer.

If 60 days have passed and you’re still in the U.S., a safer option may be asking your new employer to file a new petition rather than a request to extend your current status. If this happens, you would have to leave the U.S., get an H-1B at the U.S. consulate in that country, and then come back to the U.S. to work for your new employer. This may be a better option for some people because it doesn’t reflect whether you were trying to main your status before you applied for the H-1B Visa with your new employer.

Revoked H-1B Visa

If your former employer does revoke your H-1B Visa, you don’t have as many options if you legally want to stay in the U.S. The first action you should take is to file for a change of status to B-1/B-2. However, you will also need to get documents including your financial proof that you have enough money to stay in the U.S. until you intend to leave the U.S. at the end of your B-1/B-2 status. While B-1/B-2 may be an optimal option in the interim, for those wishing to stay in the U.S. longer it’s better to have another plan in place.

Staying In the U.S.

If you intend to stay in the U.S. after you are laid off, it’s critical to start taking some type of action right away. That’s because no matter how you separated from your employer, that employer is obligated to tell USCIS that you are no longer working for them. If USCIS finds out that you’ve been in the U.S. unlawfully for more than 180 days but less than 365, you will not be allowed to re-enter the U.S. for three years. If it’s more than 365 days, then you won’t be allowed back into the U.S. for ten years.

Get the Help You Need with The Sekou Clarke Law Group

Don’t feel like you need to go through obtaining legal status alone. At The Sekou Clarke Law Group we have helped countless people get legal status and each person’s path to citizenship is different. We know the courts and the options available that will best suit your needs — reach out today and see how we can help. (407) 269-8774.