Answers for H-1B workers who’ve been laid off (or think they might be)

According to layoffs.fyi, more than 23,000 tech workers have been laid off so far this month. For comparison, the site tracked 12,463 layoffs in October.

Facebook’s parent company Meta announced the first major job cuts in its history this week, eliminating 11,000 jobs. Like Twitter, Stripe, Brex, Lyft, Netflix and other tech firms based in the Bay Area, many of the employees impacted are immigrants on worker visas.

An unexpected layoff introduces an element of chaos into anyone’s life, but when an H-1B worker loses their job, a loud clock starts clicking: unless they can land a new position or change their immigration status within 60 days, they are required to leave the country.

And because tech companies at every size are enacting hiring freezes and planning more cuts, their ability to live and work in the U.S. is suddenly in question.

Earlier today, I hosted a Q&A for foreign tech workers who have been laid off (or think they might be) with Silicon Valley-based immigration lawyer Sophie Alcorn.

Alcorn, who writes “Dear Sophie,” a weekly advice column for TechCrunch+, shared general information for visa workers and hiring managers who are looking for talent. If you’re a visa holder who’s been laid off, your first priority is to “find a lawyer and figure out your last day of employment, because that’s when you need to start counting the 60-day grace period,” said Alcorn.

“You either get a new job, you leave, or you figure out some other way to legally stay in the United States, but you have to take some action within those 60 days.” Start looking now for new opportunities, she advised, as it will take a new employer time to submit paperwork to U.S. Citizenship and Immigration Services.

“The best-case scenario would be that this new company files your new change of employer petition and USCIS receives the paperwork on or before the 59th day since your last day of employment,” said Alcorn.

“It takes at least three weeks to prepare everything,” which means candidates and employers must move quickly as the days count down. “You probably need a signed offer around day 33,” she said.

Based on her experience, Alcorn estimated that 15% of the people laid off from Bay Area startups are immigrants, 90% of which are H-1B holders. Below, you’ll find answers to several of the questions we received [edited for space and clarity].

I was laid off while I was abroad, but my lawyer advised me to travel back on ESTA, which I did. Does the 60-day grace period still apply?

Sophie Alcorn: If you’re in the United States on ESTA after being laid off while abroad, you’re not in H-1B status anymore. You need to leave the country to get a new H-1B and try to come back in and start working.

You don’t have the 60-day grace period anymore; you’ve abandoned it. The only thing you can do to change or extend your status if you’re in the United States on the Visa Waiver Program for 90 days on ESTA is get married to a U.S. citizen and have them sponsor you for a green card.

It needs to be a real, good-faith marriage. You have to intend to share a life together, you have to demonstrate that your families know each other, that you do romantic comedy things together and have the photos to prove it. And the government’s going to check in two years to see if you’re still married.

I am currently on an OPT and have an H-1B approved, but not activated. Can I change employers without going through the lottery right away? Or would my H-1B need to be activated first?

You can actually change employers without [doing so]. When you’re interviewing for jobs, you need to make it very clear to the HR person that you think you are eligible for an H-1B change of employer, and you really need their immigration lawyers to take a close look, because essentially, what you will need is a change of status from F-1 or OPT to H-1B within the United States, as well as a change of employer.

It is possible; we have done it and it has gotten approved, even if the person never left the country and never got a visa stamp in their passport. But if you have valid OPT or STEM OPT, you don’t even need to do that yet until your work permit is about to run out because you can transfer employers on a student work permit pretty easily.

If you have already lived in the U.S. for six years on an H-1B and have to leave the country, can you come back on an H-1B recapture if you have I-140 approved?

The I-140 is the petition that you or your employer can file for an employment based green card for permanent residence. It’s in the EB-1, EB-2 or EB-3 category. And yeah, there’s this lovely weird exception from a law called the American Competitiveness in the 21st Century Act which allows for people to have H-1B extensions beyond the typical six-year maximum.

You can recapture time up to the six-year limit if you’ve been abroad or in another status in between for whatever reason in the United States. But being out of the country, having gone through the H-1 visa lottery and using up your initial six years on an approved I-140 petition is typically a situation where somebody can get those extensions of H-1B status beyond the initial typical six-year limit.

That person can look for jobs and then their new employer’s immigration lawyer would look for all of those documents from the past employer and could request a new H-1B for additional additional time while they’re waiting for their turn in line to get their green card going.

I was laid off a year ago and couldn’t get a new job in the U.S., so I left the country. I still have more than three years remaining on my H-1B, so if I got a new job, can I still go back to the U.S. under a new H-1B visa? Do the six years expire if I’m not employed?

You can get a new H-1B for a company without going through the lottery again. And if they have a valid visa for multiple entries and their passport from the old company, they might be able to just come on in with the I-797 approval notice from the new company’s petition.

But otherwise, they could schedule a visa interview for a new H-1B in their passport for the new company and then come back in. It’s exciting when people have options.

I’m on an L-1B visa and I haven’t started the green card process yet. Should I try to get my employer to sponsor an H-1B visa (via the lottery) in case I need to find a new employer in the future?

The thing about L visas is that they are for intracompany transferees, so they only work if you’re basically part of the same multinational corporation transferring from a foreign office to a U.S. office. If you get laid off from the U.S. office, you can’t transfer your L to another company that’s outside of that multinational.

If you’re on an L-1B, it’s always a safe idea to have your employer put you into the H-1B lottery every year. The government filing fee is only $10 to include somebody and that is coming up in March. With all these hiring freezes, I’m not sure where the H-1B lottery is going to be in terms of the total number of registrants. If you have an employer willing to put you in there, you might have greater odds than last year to actually get selected.

I’m in India, where I assist people with immigration issues. I have a client who is a green card holder and is getting married to a man from India — can they apply for a marriage visa petition from India?

Yes, and it’s probably going to take three-ish years, so it might be better for the Indian spouse to get some sort of non-immigrant working visa or student visa in the U.S. so they can return together sooner, and then do an adjustment of status to the green card as the spouse of a green card holder once they’re in the United States.

The information provided in this article is general information and not legal advice.