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Article At A Glance: This article shares information on H-1B layoffs, the sixty-day grace period after job loss, and your options if you are laid off.
This article is taken from “Chapter 3: The Most Popular Gamble” in the book Unshackled, co-authored by Soundarya Balasubramani and Sameer Khedekar.
What is the H-1B?
The H-1B is a temporary, non-immigrant visa that lets you work in the United States in a “specialty occupation.” Of course, that begs the question: what is a specialty occupation?
A specialty occupation is one where you:
- Have a job that requires a bachelor’s degree (or equivalent) due to the complex and specialized nature of it, and
- Have a bachelor’s degree (or equivalent) directly related to the job.
The H-1B lets you work in the United States for three years initially, with the option to extend for another three years maximum.
Once a stable option for skilled immigrants, the H-1B is no more a visa you can count on.
Layoffs on H-1B
In just the first three months of 2023, over 150,000 tech workers received a fateful email: you’re affected by the layoff.
Among the 150,000 odd workers, approximately 10% were immigrants on visas, mainly on H-1Bs. These 15,000-odd immigrants had exactly 60 days after getting laid off to find another job and hold on to their H-1B. The sheer scale of this made everyone realize just how precarious the life of an immigrant can be, regardless of whether you’re an entry-level engineer or the Vice President of engineering. Immigration rules don’t discriminate that way.
Since your H-1B is dependent on you being employed in the U.S., it’s critical that you understand what it means to be laid off, or to quit, on your visa.
Sixty-day grace period
In 2017, USCIS published a regulation to offer something called a “60-day grace period” for immigrants who got their employment terminated on work visas such as the H-1B, O-1, L-1, etc. This is a period during which you can stay in the U.S. to find another job and move employers, switch to another visa status, or put your affairs in order to leave the country. It’s meant to give you some breathing room after you leave your job.
During the mass layoffs that happened in the tech sector, the question that plagued every immigrant who got laid off was this: When does my 60-day grace period begin?
Your 60-day grace period begins on your last day of paycheck, as per a USCIS update in March 2023.
So if your employer keeps you on unproductive employee status and continues to issue paychecks for two more months after giving you the layoff notice, then your 60-day clock begins the last day of the last paycheck. However, note that this does not apply to severance paychecks.
In March 2023, the Presidential Advisory Commission recommended that the 60-day grace period be extended to 180 days instead to give people more leeway! This is the first step in the official process. If all goes well, this could go into effect as a regulation in the second half of 2023. Check USCIS for the latest update.
Your options when you’re laid off
Thankfully, there are other options you can switch to besides the H-1B, temporarily, if you don’t want to leave the country:
- B-2 visa: The B-2 tourist visa lets you stay in the country for 6 months, before you need to renew it. You can file for a “Change of Status” so that the transition is immediate. But check with a lawyer, as not everyone should apply or expect to get approved.
- H-4 EAD: If you’re married to an H-1B holder whose visa is valid, you can move into an H-4 dependent visa and apply for the EAD card.
- F-1 visa: If you were interested in going back to school, this is a good time! As with the B-1, file for a transition under “Change of Status.”
- O-1 visa: Although the bar is high, this is still an option – and a great one at that – if you have sufficient personal accomplishments.
Finally, as we mentioned in the earlier section, it’s worth requesting your employer to keep you on the payroll as an unproductive employee for a few months. This can give you more breathing room to find your next employment, and not switch to a sub-optimal pathway in the meantime.
In the end, if you don’t end up finding a job within the 60 days and decide to leave the country, make sure to ask your employer to pay the cost of your return trip to your home country, since they’re legally required to do so.
DISCLAIMER: The information provided in this article is for general informational purposes only and should not be construed as legal advice. Consult a licensed immigration attorney for advice specific to your situation. Want to be connected with one? Email us at firstname.lastname@example.org.