Large layoffs have been reported at many large tech companies in November 2022. Many of these employees will have their stress compounded because they are H-1B visa holders. This means their ability to live and work in the U.S. is contingent on their job, which is now lost. If you are one of the H-1B layoff employees, read and save the below information and infographic.
It is important to know there are three key obligations a company has when terminating an H-1B visa holder.
- Your company must notify you of a “bona fide” termination. The DOL prohibits unpaid suspension or otherwise “benching” of an H-1B visa holder.
- Your employer must notify USCIS of the change in employment status.
- Your employer must provide a reasonable cost of transportation back to your last place of foreign residence.
Other important information to know can determine the future of your career and life in the U.S. Overstaying your authorized period of stay can result in dire consequences, including being barred from returning to the United States for up to 10 years.
The 60-Day Grace Period
Upon your H-1B layoff notification, you have a 60-day grace period to either find a new sponsoring employer, change your status, or coordinate your relocation overseas. In this grace period, you may not work for the employer that just laid you off. Use your time to plan your return home, look for a position at a new company, or prepare an application for a change to another status.. It is important to exit the country by the end of the 60 days to avoid any unauthorized period of stay. Even more severe consequences can arise if you stay beyond the period of stay granted on your most recent I-94.
Cost of Returning Abroad
Your employer also needs to provide you with a reasonable cost of transportation to your last place of foreign residence. Your employer can purchase travel for you or provide you with the funds to purchase transportation yourself. Those expenses may be satisfied as part of a severance package. It all depends on company policy. In addition, they are not obligated to incur the cost of relocating your dependent family members or any property.
H-1B Portability Rules
You can begin working for a new employer willing you sponsor your H-1B visa as soon as an H-1B change of employer petition is filed by the new employer. With this process, you and your new employer can take advantage of the H-1B portability rules. There are certain circumstances where this is not possible, but generally, it’s a great option if you can find a new employer. With a job offer in hand, it’s a simple petition to USCIS that does not put you back through the H-1B quota and lottery again.
Issues with Your H-1B Employer
If you find yourself dealing with a noncompliant employer, either in neglecting a “bona fide” termination or not providing the costs to return home, you do have the option to file complaints with the appropriate federal agencies. For employers that are not following the termination regulations, you can file a complaint with the Department of Labor. In the case of non-compliance with providing the costs to return overseas, you can file a complaint with USCIS.
Detailed guidance on the termination of H-1Bs for both employers and employees can be found here. The below infographic has an overview of the information outlined above for laid-off employees in the unfortunate event of an H-1B layoff. If you recently experienced or think you may soon be experiencing an H-1B layoff, it is essential to consult with immigration counsel to avoid any missteps as you navigate the 60-day grace period. Please contact one of Klasko’s experienced employment-based immigration attorneys here.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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