U.S. companies laid off tens of thousands of employees in the final months of 2022 as employers tightened their belts amid fears of an economic downturn. While layoffs are always challenging, they are particularly difficult for nonimmigrant visa holders whose lawful presence in the United States is tied to their employment.

Regulations provide up to 60 days as a grace period for workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications (and their dependents) if they are terminated from previously approved employment. Visa holders cannot work during this time but remain eligible to change employers or change immigration status.

As outlined on a recently launched U.S. Citizenship and Immigration Services web page, options for nonimmigrants may include:

  • Maintaining their current nonimmigrant status by finding a new employer.
  • Changing to a different nonimmigrant status with a new employer, e.g., some L-1 workers may be eligible for new employment under the TN, E-3 or H-1B1 classifications.
  • Becoming the dependent of a nonimmigrant spouse, e.g., applying for an H-4 or L-2 visa.
  • Applying for F-1 status and enrolling as a full-time student.
  • Applying for adjustment of status in an immigrant classification that permits self-petitioning, e.g., EB-1 Extraordinary Ability, EB-2 National Interest Waiver or EB-5 Immigrant Investors.
  • Remaining in the United States by applying for a B-1 or B-2 visitor visa.
  • Departing the United States and applying for a new visa and/or seeking readmission to the United States while abroad.

Not all of these options include work authorization. For example, B-1 and B-2 visitor visa holders are barred from “performing skilled or unskilled labor” in the United States. F-1 students may engage in limited employment. Dependents are permitted to work incident to status in some cases, but are barred from work authorization in others.

The post-termination grace period ends 60 days after termination or until the end of the previously authorized validity period, whichever is shorter. A petition to change employers or change status stops the accrual of unlawful presence until the petition is adjudicated. H-1B workers can begin working for a new employer as soon as a change of employer petition is filed. More information is available on USCIS’ new Options for Nonimmigrant Workers Following Termination of Employment page.

BAL Analysis: Layoffs pose particular challenges for many nonimmigrant visa holders. While regulations provide a 60-day grace period, this is a tight window to find new employment or another basis to remain in the country. Individuals who lose a job are encouraged to seek immigration counsel to weigh their visa options and help focus their job search. BAL will continue following this issue and will provide updates as information becomes available.

This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

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