As layoffs continue, foreign nationals are forced to act quickly

Many people hoped that the pace of layoffs in the United States would ease in 2024, but the results thus far have not been promising. While most attention has focused on the tech industry, troubling signs now indicate that other industries may follow. Already, several major retailers have announced significant layoffs, and a recent survey of 906 business leaders in various industries found that nearly four in 10 expect to lay off workers in 2024.

Obviously, the experience of losing a job is challenging for anyone. But for foreign nationals in the U.S. on nonimmigrant work visas, such as the H-1B, it is particularly difficult. These visas are usually sponsored by the employer who hires the employee, meaning that if the job is lost, so is the sponsorship.

While American citizens who are laid off may embark on a job search that could stretch for many months as they collect unemployment benefits, foreign nationals on work visas have it tougher. They may stay in the U.S., but to do so, U.S. Citizenship and Immigration Services requires that they generally must find a new job within 60 days to retain their nonimmigrant status. That might sound like adequate time, but for many job seekers it is actually quite short.

Generally, if these workers have not secured a new job within 60 days, they lose their nonimmigrant status and must leave the country. But there are options that could allow them to stay, even if they can’t find a new job.

These options include

• Applying for a change of nonimmigrant status that allows work authorization. For instance, individuals in L-1 status may be eligible under TN, E-3 or H-1B1 classifications.
• Applying for a B-1 or B-2 visitor visa that would allow them to stay in the U.S. but does not provide employment authorization.
• Applying for an F-1 student visa. This option may be costly, but it does provide greater time to remain in the U.S. and may provide an opportunity to contemplate a career change.
• Becoming the dependent of a nonimmigrant spouse by applying for an H-4 or L-2 visa. These visas allow holders to stay in the U.S. but allow work authorization only in limited circumstances.
• Applying for adjustment of status in an immigrant classification that permits self-petitioning, such as EB-1 Extraordinary Ability or EB-2 National Interest Waiver.

It is important to point out that when foreign nationals do leave the country, that doesn’t necessarily mean their days of working in the U.S. are over. Nothing prevents them from continuing their search for an American job and a new work visa from abroad.

For foreign nationals who are laid off in the U.S. and want to stay, the “alphabet soup” of visa options might appear daunting. But solutions, whether temporary or permanent, may be possible. It is important for them to seek counsel and learn about eligibility requirements to help tailor their search.

For employers, meanwhile, it is advisable to start thinking now about the prospect of handling possible layoffs down the road and being aware that their foreign workers are likely to experience a greater negative impact when they are let go. Employers might consider assisting their laid-off foreign national employees with guidance, and perhaps access to outside counsel, if their jobs come to an end. This approach may burnish an employer’s reputation as a place that is sensitive to employees’ needs and produce long-term benefits.

For both employers and employees, planning for the future is critical. While the economy is showing positive signs, the market remains volatile.

When the stakes are so high, having a plan in place that can be implemented immediately is crucial.

Steven is a senior associate in BAL’s Dallas office. To get in touch with Steven or another BAL attorney to discuss options before, during or after layoffs, contact us here.