“Dear Sophie” is a collaborative forum hosted by Extra Crunch and curated by Sophie Alcorn, who is certified as a specialist attorney in immigration and nationality law by the State Bar of California Board of Legal Specialization. Sophie is the founder of Alcorn Immigration Law, the fastest-growing immigration law firm in Silicon Valley and 2019 Global Law Experts Awards’ “Law Firm of the Year in California for Entrepreneur Immigration Services.”
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Dear Sophie: I’m a software developer at a large company. I just found out that I’m getting laid off and my last day of employment will be in 30 days. I have an H-1B visa that just got renewed, so it’s valid for almost three more years.
I need to stay in the United States because my wife has her own H-1B and a great job that she loves, we have a U.S. citizen baby and we bought a house last year. I’m starting to look for jobs. What should I do from an immigration standpoint?
— Nervous in New Haven
Dear Nervous: First of all, congratulations on turning over a new leaf in your career ;) — I know it can feel scary, but you’re now open to new possibilities for your professional and personal development. I’ve spoken to a lot of people in your situation and have noticed that these sorts of situations usually turn out for the best.
You’re already doing the best thing you can do: looking for another job. You’ll have a 60-day grace period after your last day at work in which you can remain in the U.S. without working. If you can get another job in that time, you’re all set — just make sure your new company knows that they need to file a new petition before the final day of your grace period.
And hopefully, that’s exactly what will happen. I’m a firm believer in the power of positive thinking — but it’s always good to have a backup plan ready in case things don’t work out. Because if things don’t work out and you aren’t planning ahead, you’ll need to depart the U.S. at the end of those 60 days or change to a nonimmigrant status such as B-2 visitor for pleasure, H-4 dependent, B-1 for business purposes such as creating (but not working for) a startup or F-1 student.
Please know that B and F statuses both require “nonimmigrant intent,” so if a company has sponsored you for a green card, there is a risk that the government could determine that you might not qualify for those statuses and it might be better to stick with H-4, which is dual intent.
When I work with clients in your position, the main thing I advise them to do is be strategic. You want to hit the ground running with optimized and updated materials (resume, LinkedIn profile, portfolio, GitHub account, etc.) — and apply to every job you can find on every job site available.
Then, give yourself a few weeks to network, get leads and interview. Employers will ask if you require employment authorization (you do). It’s best to let their hiring team directly know that you will require an H-1B transfer at this point as they’ll need to involve their legal team to bring you on. This usually isn’t a deterrent to them hiring you, just a process in which you want to be proactive.
Here’s an ideal time frame of events to stay in the country on H-1B. If you start to drift past it, you’ll need to start switching to that backup plan I mentioned earlier.
- Day 1-21: Put all your effort into finding another job. Don’t be shy — reach out to everyone on LinkedIn you think could help you get seen by a recruiter or hiring manager (or even line you up with an interview).
- Day 21-30: At this point, you should definitely be interviewing with as many companies as possible.
- Day 30-45: As soon as you accept an offer, ask the company to initiate your LCA with the Department of Labor. This could take 7-10 days. After that, they need to file your I-129. If you request premium processing and there is no request for evidence, then you could have an approved H-1B petition before your grace period ends.
- Day 45-60: Either move toward onboarding or keep looking while switching to implementing your backup plan. You might have to hire an attorney to get your change of status done in time. It’s best to reach out as early as possible if you think this might be necessary.
As long as your new petition or application is filed on or before the sixtieth day of your grace period, you’re allowed to stay inside the United States while waiting for USCIS to make a decision, even if waiting extends beyond the end of the 60-day grace period.
Backup plan: If you can’t find an employer within the 60-day grace period, you’ll have to decide if you want to depart the country or switch to another type of nonimmigrant status (since you’re married to a spouse with H1-B status). Currently you can also request a change of status to H-4 and a work permit, but the work permit likely won’t come in the mail for at least six months. Furthermore, we anticipate that the H-4 work permit program will be ending in 2020, so planning on using this status for employment is not a reliable plan. If you decide to take a break from work or to go back to school, you could do this on H-4, however.
Basically, you want to make sure you have an offer by the 30-day mark of your grace period to give you time to get a decision on the new H-1B transfer before your grace period ends, even though that would be a tight squeeze. If that’s not happening for you, by all means, keep looking for a job — and reach out to an immigration attorney about your backup plan. You’ve got this! 💪
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Do you have a story to share about overcoming immigration to build technology? Apply to guest on Sophie’s upcoming podcast highlighting the connections between U.S. immigration policy and startups.