USCIS Update January 3, 2023
On December 19, 2022, USCIS published a new resource containing options available for nonimmigrant workers who have lost their employment. We review the opportunities provided by USCIS for nonimmigrant workers that have lost their jobs here.

60-Day Grace Period

Regulations permit a discretionary grace period that allows workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents) to be considered as having maintained status following the cessation of employment for up to 60 consecutive calendar days or until the end of the authorized validity period, whichever is shorter (See 8 CFR 214.1(l)(2)). – Options for Nonimmigrant Workers Following Termination of Employment

Transfer to a New Employer

Portability rules permit workers currently in H-1B status to begin working for a new employer as soon as the employer properly files a new H-1B petition with USCIS, without waiting for the petition to be approved. Also, a worker with an adjustment of status application (Form I-485) that has been pending for at least 180 days with an underlying valid immigrant visa petition (Form I-140) has the ability to transfer the underlying immigrant visa petition to a new offer of employment in the same or similar occupational classification with the same or a new employer. – Options for Nonimmigrant Workers Following Termination of Employment

Change to another Nonimmigrant Status

Workers may use the up to 60-day discretionary grace period to apply to change their nonimmigrant status, which may include changing status to become the dependent of a spouse (e.g., H-4, L-2). Some individuals in a dependent nonimmigrant status may be eligible for employment authorization incident to status, including spouses of E-1, E-2, E-3, or L-1 nonimmigrants. – Options for Nonimmigrant Workers Following Termination of Employment

Change of Status and Employer

Workers may use the up to 60-day discretionary grace period to seek a new employer-sponsored nonimmigrant status in the same or different status. For example, depending on the specific facts presented, an L-1 worker may be eligible for new employment under the TN, E-3, or H-1B1 classifications. The timely filing of a non-frivolous change of status application will prevent the accrual of unlawful presence until the application is adjudicated (see above). Such a filing alone will not, however, confer employment authorization in the new position during the pendency of the application, and will not extend employment authorization if the original classification is no longer valid. – Options for Nonimmigrant Workers Following Termination of Employment

Adjustment of Status

Some workers may be eligible to file a self-petitioned immigrant visa petition concurrently with an adjustment of status application. Examples of immigrant classifications that are eligible for self-petitioning include EB-1 Extraordinary Ability, EB-2 National Interest Waiver, or EB-5 Immigrant Investors. Workers with a pending adjustment application are generally eligible to remain in the United States and obtain an Employment Authorization Document (EAD).  – Options for Nonimmigrant Workers Following Termination of Employment

Period of Authorized Stay – Compelling Circumstances Employment Authorization Document

Workers who are the beneficiary of an approved employment-based immigrant visa petition (Form I-140) may be eligible for a compelling circumstances EAD for up to one year if they:

  • do not have an immigrant visa available to them in the Department of State’s Visa Bulletin, and
  • face compelling circumstances.

Note: A compelling circumstances EAD is a discretionary stopgap measure intended to assist certain individuals on the path to lawful permanent residence by preventing the need to abruptly leave the United States. Workers who begin working on a compelling circumstances EAD will no longer be maintaining nonimmigrant status but generally will be considered to be in a period of authorized stay and will not accrue unlawful presence in the United States while the EAD is valid. – Options for Nonimmigrant Workers Following Termination of Employment

Expedite Criteria

Some circumstances may warrant expedited adjudication, including applications to change status to a dependent status that includes eligibility for employment authorization. For example, an application to change status from H-1B to L-2 may be eligible for expedited adjudication to prevent severe financial loss. – Options for Nonimmigrant Workers Following Termination of Employment

Departure from the United States

Workers may choose to depart the United States. For H-1B and O workers who chose to depart the United States after involuntary cessation of employment, the reasonable costs of transportation to the worker’s last place of foreign residence must be borne by the H-1B employer or by the O employer and O petitioner, as applicable (See 8 CFR 214.2(h)(4)(iii)(E) and 8 CFR 214.2(o)(16)). Once abroad, H-1B holders may seek U.S. employment and readmission to the United States for any remaining period of their H-1B status. Those seeking another classification for which they may be eligible can complete the application or petition process abroad and seek readmission to the United States. – Options for Nonimmigrant Workers Following Termination of Employment

Arrive US Immigration Law Podcast – Episode 34 – What happens if you are laid off, quit, or lose your job while on a US work visa?

What happens if I get fired, lose my job, or fail to renew my TN Visa before it expires?

I was laid off or fired while on an H1B visa, now what?

How do I change my status while on a TN Visa?

I lost my job while on an H1B Visa, do I have to go through the H1B lottery again?

Read the Full Guidance from USCIS Here

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