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H-1B visa holders: Facing layoffs in the US? Here's what you can do

The USCIS outlines various avenues for H-1B visa holders to stay in the US after losing their jobs

H-1B, H-1B visa

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Surbhi Gloria Singh New Delhi

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Facing layoffs in the US? The US Citizenship and Immigration Services (USCIS) has issued new guidelines for H-1B visa holders who have lost their jobs. With major companies like Google, Tesla, and Walmart announcing significant layoffs, many immigrant workers on H-1B visas are affected. These guidelines provide several options for these individuals to extend their stay beyond the 60-day grace period.

What is H-1B visa?
The H-1B visa is a nonimmigrant work visa that allows US employers to hire foreign workers with specialised skills to work in the United States for a specific time. Typically, the roles require a bachelor’s degree or equivalent. Occupations that qualify for the H-1B visa are typically in fields such as technology, finance, engineering, architecture, or more.

What to do after getting laid off with H-1B visa?

The USCIS outlines various avenues for H-1B visa holders to stay in the US after losing their jobs:

1. File for a Change of Nonimmigrant Status: This must be done within the grace period.
2. File an Adjustment of Status Application: For those seeking to become permanent residents.
3. File for "Compelling Circumstances": Workers may qualify for a one-year Employment Authorisation Document (EAD).
4. Nonfrivolous Petition to Change Employer: This allows transitioning to a new job.

Additionally, the concept of portability enables eligible H-1B non-immigrants to start working with a new employer as soon as a non-frivolous H-1B petition is filed, without waiting for its approval.
H-1B visa eligibility

In order to be eligible for the H1B visa, you will need:

— A valid job offer from a US employer for a role that requires specialty knowledge
— Proof of a bachelor’s degree or equivalent experience in that field
— Your employer must show that there is a lack of qualified US applicants for the role

Immigrant visas and employment authorisation

Workers eligible to apply for immigrant visas through self-petitioning can do so concurrently with their status adjustment applications. While these are processed, they can stay in the US and obtain an EAD. Those with immigrant visa petitions based on employment and facing significant challenges may be eligible for a one-year EAD.

Impact of layoffs

In May 2024, Tesla laid off nearly 16,000 employees, affecting many Indian and Chinese workers on H-1B visas.

An Economic Policy Institute (EPI) analysis revealed that top H-1B visa employers hired 34,000 new workers in 2022 but laid off at least 85,000 workers in 2022 and early 2023.

EPI researchers claim that tech and outsourcing companies are exploiting the H-1B visa programme, intended to fill labour shortages, by laying off many workers. "Most employers hire H-1B workers because they can be underpaid and are de facto indentured to the employer," the EPI report stated.

Challenges faced by H-1B visa holders

In March 2023, a presidential advisory subcommittee recommended extending the grace period for H-1B workers from 60 to 180 days. This extension would provide more time for job seekers to find new employment or alternative solutions.

Ajay Jain Bhutoria, a member of the President's Advisory Commission on Asian Americans, Native Hawaiians, and Pacific Islanders, highlighted the significant challenges H-1B workers face when laid off. They have a 60-day grace period to leave the US, change their immigration status, or have another employer file an H-1B petition on their behalf. Failure to do so results in a violation of their visa terms.

The US government has yet to act on the recommendations of the presidential advisory subcommittee.

The job market is tough, especially for those in specialised fields. Tech companies often conduct multiple rounds of interviews, which can take weeks. Even if an H-1B worker finds a new job within 60 days, transferring their H-1B status is time-consuming and complex due to the significant paperwork involved.

"Delays at USCIS can prolong this process beyond 60 days, potentially resulting in the loss of skilled labour for the US. These workers may not be able to return unless they secure a new H-1B visa, which could take years," Bhutoria said.

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First Published: May 16 2024 | 10:00 AM IST

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