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Impact of tech layoffs on immigrant workers

In the wake of an upsurge in mass layoffs by tech companies nationwide, non-immigrant employees on temporary visa status, like H-1B, L-1 and O-1, are being hit the hardest.

Loss of a job, for a foreign national employee, can be significantly more devastating than that felt by a U.S. citizen/resident employee.  Job loss under an employer supported visa, means the employee and their dependents – including US Citizen children – face the very real possibility of having to leave the U.S. within 60-days of the last day worked.

The information below is being provided to help guide individuals who may be on non-immigrant visa status and experiencing a job loss. This information should not be construed as legal advice, anyone person or situation. This is merely a brief overview of possible options. If you need advice, with respect to your specific situation, contact the KTC attorney with whom you regularly work, a member of our immigration team, or me directly, kripa@karrtuttle.com.

H-1B Visa Holders

  1. You have 60-days from the last date worked. Do not count the last day paid of severance as the end of your employment date. USCIS has said that they do not consider “nonproductive work” to be maintenance of status.
  2. Realistically, you need to file for transfer of H-1B to a new employer by your 45th day of the grace period. A new employer will need to file a Labor Condition Application (LCA) which typically takes up to 7-days to process.

L-1 Visa Holders

Unfortunately, you have a 60-day grace period within which to leave or change status to a F-1 or B-2; this buys you time to sort out your affairs. You do not have the option of transferring your L-1 to another employer. Unless, you can show that you worked for a foreign subsidiary/affiliate of that employer for at least one year within the last three years.

O-1 Visa Holders

You too have the 60-day grace period.  You are able to transfer the O to a new employer as long as you are able to show that the new employer has a need for your specific skills, and that you will continue to employed in the field of your endeavor that was the basis of your O-

Change of Status to B-2

A B-2 will not allow you to work, but it will allow you to remain in the U.S. while you “wind down” your affairs.  If you find a job within this period; even if it is after the 60-day grace period, as long as you filed the change of status petition on time, it is still possible to file to transfer H to a new employer.

It is crucial to understand that you cannot and should not file any frivolous applications with USCIS; however, in my experience, the people most affected by these layoffs have been living and working in the U.S. for the past several years. Some of them have purchased homes and have children attending U.S. schools. Leasing or selling a home, removing children from school, and getting ready to pack up your life and leave the U.S., requires more than an arbitrary 60-day timeline. It is, I believe, perfectly legitimate to ask for a change of status to B-2 to allow you more time.

Adjustment of Status via EB-5 Investor Visa

The EB-5 Reform and Integrity Act (RIA) brought about significant changes to the EB-5 program. Chief amongst them for investors is: the higher amount required to invest, and the ability for investors presently in the U.S. on some other valid status, to concurrently file for Adjustment of Status.

The minimum investment amount required to invest in a Targeted Employment Area (TEA) is $800,000. A TEA is defined as an area that is either rural, high unemployment or investment is certain infrastructure projects.  Investment outside of TEA areas, requires a minimum investment of $1.05 million.

Concurrent filing for Adjustment of Status means you will have the right to continue to reside in the U.S. and you will receive a work permit (not tied to any specific employer) in 6-8 months. The expected processing time for applicants filing, into TEA areas under the RIA, is expected to be on average 18-24 months.

Change of Status to F-1 and Day 1 Curricular Practical Training (CPT):

Enrolling into a program of study that is the same level or higher than your last education earned is an option. Please exercise extreme caution when enrolling in day one CPT schemes. USCIS as an agency, has in the past created a fake university and ensnared students who received day one CPT’s. Make sure you do your homework and due diligence on the school and make sure it is a legitimate course of study.

Effect on PERM

Anyone that was in the midst of a Labor Certification or PERM process; unfortunately, you will need to start over.  Department of Labor is very unlikely to certify labor certification applications for companies with pending labor certifications if they have just had mass layoffs.  For those who kept their jobs but have pending labor certifications, and are in your 5th Year H -1B’s, you need to start thinking about alternatives now.

Multiple Change of Status Petitions

Yes, you can file for change of status from H-1B to H-4 now and if your spouse has his/her own H-1B.  If you then find a job 6-8 months later, you can change status back from H-4 to H-1B. This may require you to leave & consular process (visa stamping) before you are able to re-enter.

Navigating immigration matters on any good day is a challenge; navigating the current waters, while also having to content with the loss of employment, can be extremely stressful. Please know that the KTC immigration team is here to assist you.  Please do not hesitate to reach out.