Nonimmigrant workers who have been laid off, either voluntarily or involuntarily, may be eligible to extend their stay in the United States so long as they maintain their nonimmigrant status and take appropriate measures.
Below is a comprehensive list of choices for non-immigrant workers who desire to stay in the United States after job loss. Even though not all these options will provide work authorization, each could be incredibly advantageous for those looking to remain within America during an approved period of time.
Immigration guidelines offer a generous 60-day grace period to foreign nationals currently employed in the United States under E-1 (Treaty Trader), E-2 (Treaty Investor), E-3 (Specialty Occupation Professional from Australia), H-1B (Specialty Occupation Professional), H-1B1 (Chile/Singapore Free Trade Agreement), L-1 (Intracompany Transferee), O-1 (Alien of Extraordinary Ability or Achievement) and TN (NAFTA Professional) visa categories along with their dependents.
This grace period may be used to secure an extension of stay through a timely filed change of employer petition, or alternatively, allow for the individual to change to a different nonimmigrant status by filing an application for a change of status.
If the foreign national fails to secure a new nonimmigrant visa category within the 60-day grace period, they may be required to depart the United States at the expiration of this period.
It is important to note that the 60-day grace period does not guarantee an extension of stay or allow for a foreign national to remain in the United States beyond the expiration of their current visa status.
Portability rules for H-1B visa holders enable them to switch employers without waiting for their petition to be approved, immediately upon the employer submitting a new H-1B petition to USCIS. Another option available to H-1B visa holders is applying for a change of status while maintaining the same employer.
Any current nonimmigrant may be eligible to change their status in the United States if they meet all the requirements for the desired new status within the 60-day grace period. This may include the dependent statuses of spouses, such as H-4 (dependent of an H-1B visa holder) or L-2 (dependent of an L-1 visa holder).
Dependents of some E-1 (treaty traders), E-2 (treaty investors), E-3 (specialty occupation workers from Australia), and L-1 (intra-company transferees) visa holders may also be eligible for employment authorization. What’s more, some spouses of H-1B visa holders may be able to gain authorization for employment if the established requirements are satisfied.
Another potential nonimmigrant status may be a student (F-1) or visitor (B-1 and B-2). It is important to note that B-1 and B-2 nonimmigrants are prohibited from participating in any “unskilled or skilled labor” during their stay in the United States. Depending on the conditions of their visas, certain F-1 students may be eligible to participate in limited forms of employment.
During the discretionary period of up to 60 days, nonimmigrant workers have an opportunity to pursue a new employer-sponsored status – either similar or different in classification. For instance, a worker with an L-1 (intracompany transfer) visa status may seek employment
through TN (trade NAFTA), E-3 (specialty occupation professionals from Australia), or H-1B1 (specialty occupation professionals from Chile/Singapore) classifications.
Registering a legitimate application for alteration of status will be advantageous as it stops the build-up of Unauthorized presence until your request is fully assessed. Nevertheless, simply obtaining the new employment position does not guarantee approval for a visa during application. Furthermore, if your initial visa has already expired, it won’t be renewed by this job change either. Premium processing may be available in certain cases for an additional fee. This shortens the processing time for a change of status application.
Adjustment of Status is the process by which an eligible foreign national may apply to change their nonimmigrant or temporary status to that of a lawful permanent resident of the United States. For some immigrant workers, it’s possible to file for an immigrant visa petition and adjustment of status application simultaneously. These classes of immigrants include Immigrant Investors (EB-5), National Interest Waiver (EB-2) , Extraordinary Ability (EB-1) etc. Please contact an attorney for more information.
An Employment Authorization Document (EAD) can be obtained for workers with a pending adjustment application, allowing them to remain in the United States. Additionally, those who are beneficiaries of a work-based immigrant visa petition (Form I-140) can qualify for an up to 1-year Employment Authorization Document if facing compelling circumstances and their visa is not yet available. The Compelling Circumstances Employment Authorization Document helps workers stay in the United States while awaiting the availability of their immigrant visa, and prevents them from having to abruptly leave. Those who possess a verifiable Employment Authorization Document will not be subject to any accumulated unlawful presence