Help for Foreign Workers Affected by U.S. Tech Company Layoffs
Posted by Lola Zakharova
Are you on a visa and your company is laying you off? Here is what you need to know.
By the end of May 2022, more than 20,000 tech and startup jobs were cut by large and small tech companies in the United States. Tech layoffs have been spurred by fears of an economic downturn, cost-cutting pressure, rising inflation and interest rates, and over-hiring during periods of rapid expansion. Foreign nationals working in the tech industry on U.S. employer-sponsored visas have been put in a stressful position with their stay in the country tied to their job. Senior managers, executives, and other employees in the U.S. on H-1B, TN, L-1, and F-1 OPT Visas may be wondering if they can stay in the country at all on their current visa and what will happen to their pending green card application if they are swept up in tech company layoffs.
Immigration lawyers at MHB are ready and able to help foreign nationals who have experienced a change in their employment status that may affect their visa status and pending green card application. We have a lot of experience in crafting creative solutions for senior managers, executives, and other employees in the tech industry who have been affected by layoffs and terminations.
What are your options if you are in the U.S. on a visa and get laid off?
Depending on the type of employer sponsored visa you are here on, there may be several options to maintain your right to live and work in the United States.
Use the information below to help determine your next steps after a layoff:
TN Visa
Can I remain in the US?
Upon your termination, you are no longer in valid visa status. However, regulations provide a discretionary 60-day grace period during which you are eligible to file a change of employer/change of status. That grace period is shortened to the expiration of your I-94 if that expires in less than 60 days.
Can I transfer my current status to another employer?
A new employer would need to file a new TN petition for you or have you exit the U.S. and obtain a new TN while physically in your home country of Canada or Mexico.
What if I can't find a new employer within my grace period?
Consider whether you are eligible for any other status. For example, if you have a spouse in H-1B or L-1 status, you could apply for H-4 or L-2 change of status. After the 60-day grace period, if you have not filed to change employers or status, you will be out of status and should depart the United States immediately.
Are there restrictions on what I can do during the grace period?
You cannot work or re-enter the U.S. while in your grace period.
Are there any additional steps I should take?
Is your employer sponsoring you for permanent residence? If so, see our guidance for pending permanent residence applications below.
H-1B Visa
Can I remain in the US?
Upon your termination, you are no longer in valid visa status. However, regulations provide a discretionary 60-day grace period during which you are eligible to file a change of employer/change of status. That grace period is shortened to the expiration of your I-94 if that expires in less than 60 days.
Can I transfer my current status to another employer?
Yes, you can port your current H-1B to a new employer as long as the new employer files the I-129 within your grace period. In most cases, you can begin working as soon as the change of employer petition is filed.
What if I can't find a new employer within my grace period?
Consider whether you are eligible for any other status. For example, if you have a spouse in H-1B or L-1 status, you could apply for H-4 or L-2 change of status. After the 60-day grace period, if you have not filed to change employers or status, you will be out of status and should depart the United States immediately.
Are there restrictions on what I can do during the grace period?
You cannot work or re-enter the U.S. while in your grace period.
Are there any additional steps I should take?
Is your employer sponsoring you for permanent residence? If so, see our guidance for pending permanent residence applications below.
L-1 Visa
Can I remain in the US?
Upon your termination, you are no longer in valid visa status. However, regulations provide a discretionary 60-day grace period during which you are eligible to file a change of employer/change of status. That grace period is shortened to the expiration of your I-94 if that expires in less than 60 days.
Can I transfer my current status to another employer?
Unfortunately, unlike H-1B, L-1 holders do not have the same flexibility when it comes to changing employers. Any new role would need to be under the same family of corporations as your original L-1 sponsor. If you have a blanket L-1 approval that includes more than one company, you may be able to transfer to one of the other covered companies as long as your new role is the same.
What if I can't find a new employer within my grace period?
Consider whether you are eligible for any other status. For example, if you have a spouse in H-1B or L-1 status, you could apply for H-4 or L-2 change of status. After the 60-day grace period, if you have not filed to change employers or status, you will be out of status and should depart the United States immediately.
Are there restrictions on what I can do during the grace period?
You cannot work or re-enter the U.S. while in your grace period.
Are there any additional steps I should take?
Is your employer sponsoring you for permanent residence? If so, see our guidance for pending permanent residence applications below.
F-1 OPT Visa
Can I remain in the US?
Upon employment termination, you are no longer in valid status. However, if you are in your initial 12-month OPT period, you are permitted a total of 90 days of unemployment. If you are in your 24-month STEM OPT extension, you are permitted a total of 150 days of unemployment. The 90 days start counting from your approved OPT/EAD start date (not the recommended start date nor the program end date on your I-20) and are cumulative. It is a good idea to ask your Designated School Official (DSO) how many days of unemployment you have left.
Can I transfer my current status to another employer?
During your initial 12-month OPT, it is okay to change employers, but you need to notify your DSO and request a new I-20 to reflect the new employer. During a 24-month STEM OPT extension, a new employer must be an E-Verify participant and a new Form I-983 training plan is required. You will also need to request a new I-20 from your DSO.
What if I can't find a new employer within my grace period?
Consider whether you are eligible for any other status. For example, if you have a spouse in H-1B or L-1 you could apply for H-4 or L-2 change of status. If you accumulate 90 days or more of unemployment, you are in violation of your F-1 status and should consult an immigration attorney.
Are there restrictions on what I can do during the grace period?
Check with your DSO to ensure new employment is compliant with your OPT before taking any new role.
Are there any additional steps I should take?
You need to reach out to your DSO to report your termination within five days.
Is your employer sponsoring you for permanent residence? If so, see our guidance for pending permanent residence applications below.
What if you lose your job while your green card is processing?
If your employer is sponsoring you for permanent residence, the impact of a layoff depends on what stage in the process you are in.
Scenario | Consequences |
Form I-140 has not yet been approved. | You will need to start the permanent residence process over again once you have a new basis for filing. |
Form I-140 has been approved, but no I-485 has been filed. | You can retain the priority date of this I-140 for future EB-1, EB-2, or EB-3 I-140 filings, with limited exceptions. |
Form I-140 was approved and Form I-485 was filed more than 180 days ago. | You may be able to save your I-485 if you can find a new job that is the same or similar to the role upon which your I-140 was based. Your new employer would need to file a new Supplement J on your behalf. |
Form I-140 is approved, but Form I-485 was filed less than 180 days ago. | You may or may not be able to “port” your I-485, and you need to consult with an immigration attorney to discuss your options. If the I-140 is approved, you can retain the priority date for future EB-1, EB-2, or EB-3 I-140 filings. |
We understand how stressful it can be to lose your job unexpectedly, especially when you are not a citizen or permanent resident of the country where you are working. MHB immigration lawyers have a lot of experience in crafting creative solutions for senior managers, executives, and other employees and are here to guide you through the process and exhaust every avenue to provide the best opportunity possible to stay and work in the U.S.
The MHB Immigration Group
Our Seattle immigration attorneys guide our clients through the immigration process, ensuring that each case progresses as smoothly as possible. We take the time to understand our clients’ needs - from support on a specific issue to comprehensive assistance preparing and filing a case – and then develop creative solutions to address all concerns. MHB Attorney Lola Zakharova also speaks Russian, offering a big advantage to her Russian speaking clients; immigration attorneys Andrew Chan speaks Chinese and Miguel Bocanegra speaks Spanish.
At MacDonald Hoague and Bayless, our attorneys care deeply about immigration and the needs of our clients. We stay on top of all immigration laws and are active in the community, including speaking at local and national immigration law forums, writing articles on pressing legal issues, and teaching immigration law at local academic institutions. We provide assistance and ensure that our clients are given regular updates about their case.
To speak with an attorney as soon as possible, call us at 206-622-1604 between the hours of 8 a.m. and 5 p.m. Pacific Time, Monday through Friday or send an email to info@mhb.com or to one of our immigration lawyers directly.