There were over 50,000 people laid off in November ’22, and according to Alcorn Immigration Law, about 10-30% of those people had their visa status affected by the layoffs. If you are one of those people who find themselves at risk of needing to suddenly leave the life you’ve built for yourself, Alcorn founder Sophie Alcorn wants you to know that you are not alone, and breaks down the options available for you to stay in the US — including starting a company — if you choose to pursue them.
Many people whose visa status has been impacted by the wave of layoffs have lived here for years: they may have gone to school here, gotten married, and raised children who are U.S. citizens. They are a part of the fabric of the United States’ society.
The below is an abridged version of Sophie’s high-level guidance for how you can retain peace of mind and preserve your immigration status, ability to work, and stay in the United States after being laid off. If you are scanning this guide, pay close attention to the bolded sections to find relevant information to your status and situation.
Take Advantage of Your 60-Day Grace Period
About six years ago, United States Citizenship and Immigration Services (USCIS) created a 60-day grace period for people who were laid off from their jobs. This is a discretionary option on top of a non-discretionary 10-day grace period that already exists. These 60 days are not guaranteed but USCIS usually grants it. You don’t have to apply for this grace period; rather, it comes into effect when you’re seeking your next employer to transfer your visa to or if you’re seeking to apply for a change of status.
What this essentially means is that you have 60 days from the date of your cessation of employment to find a new job, apply for a new status, or leave the United States.
Perhaps you have been laid off but your employer is still paying you until a later date but your work account access was terminated, should you start counting your 60 days from when your paychecks stop coming in? Alcorn’s advice is no. USCIS is aware of mass layoffs and their dates, so it’s better to play it safe and count your 60 days from the date of your termination, even if you will be getting paystubs into the new year.
During your 60-day grace period, you can also choose to self-petition for a green card (EB-1A or EB-2 NIW green card). This option, alongside the O-1 visa we’ll discuss later, is available for professionals and researchers, and can be a viable alternative to re-entering the H-1B lottery, which can take decades depending on your country of origin. This year there were 483,927 H-1B lottery registrations for 85,000 spots — there is still a shortage of tech workers in the U.S., so there could be a similar amount of registrants next spring.
Transfer Your H-1B to a New Employer
If you are on an H-1B visa and you used less than six years of your original visa status before being laid off, you don’t have to go through the lottery again. During your 60-day grace period, you just need to find a new company that will file a change of employer petition on your behalf. USCIS must receive the new petition before the end of that 60-day period and then you can maintain your visa status and start working with your new employer.
Different legal practitioners will interpret “receive” differently in this context. It could be the day that your company receives the FedEx notification that your documents were dropped off with USCIS — which is a riskier interpretation — or the day that USCIS confirms their receipt. The safest way is to pay $2,500 for premium processing so that your lawyer will get an email receipt notice that your petition has been processed by the government. Your new employer can pay this fee, or you can pay for it individually if they do not cover it. If your employer pays for it, this amount cannot be withheld from your salary.
If you have used more than six years of your H-1 visa status, or you’re coming up to your limit, then your future company will need to be aware of where you are in the process. Do you have a priority date? When was your I-140 approved? Have you started the I-485 green card process yet? The more that you can do to get all of your documents clearly organized, the easier it will be to facilitate an H-1B transfer.
A 60-day grace period can be a very tight turnaround to find a new job, especially during the winter holidays and all the hiring freezes going on. A lot of companies may also be new to immigration, and it can take 2-4 weeks for them to get their H-1B petition ready if it's their first time going through the process. Those employers can work with firms like Alcorn to help get those documents in order.
Assess Your Options
What happens if you can’t get an H-1B transfer in time? This is where the decision tree gets more complicated.
If you have a spouse who is in another non-immigrant status, you can look at filing a change of status to become a dependent of that spouse’s visa. You could potentially even apply for a work permit through them. Through this process, you get to maintain your status in the United States as long as your spouse is maintaining theirs.
If you’re not married, or your spouse doesn’t have the option of applying for you as a dependent, the next thing to look at is transferring to a visitor visa to obtain another six months of time so that you can stay in the U.S. and continue interviewing or set up a startup. The B-1 visa is for business visitors and the B-2 is for those visiting for pleasure.
You may already have a B-1 or B-2 visitor visa in your passport, which is usually valid for 10 years. This is a little different, and involves changing the status of your application so that you don't have to leave the United States right now. Visitor nonimmigrant status, whether from a change of status inside the U.S., or a visa entry from outside the U.S., status has a maximum of six month validity and for a change of status you can request that the six months start at the very end of your 60-day grace period. Sophie recommends filing as early as possible just so that you know that your visitor visa application has been received by the government and is pending. If you do get an H-1B transfer filed before day 60, you could withdraw your pending change-of-status application for the B-1 or B-2 visa if you no longer need it.
One thing to note about B-1 and B-2 visas is that USCIS does not provide premium processing options so it can take 1-2+ years to receive notice of their decision. If you leave the U.S. during this time, you can be perceived as abandoning the application. This puts you in a situation where your approval notice might come many months after the end-date of your 6-month extension request. At this stage, it’s possible to do a subsequent change of status request. After your 60-day grace period has run out and before your 6-month requested visitor status has ended, you can request to change your status from B-1 or B-2 back to H-1B or another nonimmigrant status.
While you’re not allowed to work while on a B-1 or B-2 visitor visa you can look for a job that will sponsor your H-1B, work on racking up accomplishments towards an O-1A or EB-1A or EB-2 NIW green card.
Become a Founder
If you want to start your own company in the United States, an O-1A or self-petitioned green card is a valuable route to take. While you’re on a traveler’s or student visa status, you can talk to venture capitalists, publish articles, and otherwise build your portfolio of accomplishments towards qualifying for one of these options, as long as you don’t engage in any unauthorized employment.
The EB-1A and EB-2 NIW immigrant visa petiitons are green card routes, which provide permanent residence, a status that can be valid for life. The O-1A visa is given for extraordinary ability and can last for a minimum of 3 years. While an O-1 visa typically takes six months to prepare and process, a green card process can take 2-3 years if you were not born in India or China, so you would have to maintain your status with a green card beyond the 60-day grace period by filing an I-485 Adjustment of Status Application. You can self-petition for an EB-1A or EB-2 NIW; and, apply for an O-1 with an agent instead of an employer.
For all three options above, you need to show that your skills are of great use and are needed in the United States. For an O-1A petition, Alcorn recommends finding an agent who can sponsor you to have the ability to perform a variety of employment and entrepreneurial services listed on the itinerary so you have the most flexibility for different types of work when it is approved. Demonstrating contract work, speaking engagements, multiple startups, and advisory seats all become possible this way.
The O-1A is the fastest working visa you can pursue without a job offer or lottery. You don’t have to have a college degree to qualify for an O-1 visa, you just have to exhibit three of the following eight categories:
- Media coverage
- Creation (ex. filing a patent)
For example, you could participate in On Deck and receive media coverage about your company in TechCrunch and other publications. If you are then invited to judge a Hacakthon, that could represent three out of the eight criteria above.
Talk To a Professional
While this is a high-level overview of the overarching options available to laid off employees, Sophie recommends working with a professional to understand the full scope of options available to you. Topics not covered in this guide include F-1 student visas, how to leverage STEM expertise in the visa process, PERMs, cap-exempt H-1Bs, and others. Get more information from Alcorn below:
- How can I stay in the US if I've been laid off?
- Are there any visas or green cards I can get on my own?
- My co-founder’s a green card applicant who just got laid off, now what do we do?
Among other services, Alcorn Law is now offering $1,000 off their standard rate for H-1B transfers to hire individuals affected by the tech layoffs. Get in touch at firstname.lastname@example.org.