Nonimmigrant workers (e.g., H-1B) who were laid off are automatically removed from status. Nonimmigrants with O-1 or H-1B visas, L-1, E-2, E-3, or TN are granted a 60-day grace period after the termination of employment. This rule was effective on January 17, 2017. You have 60 days or until the expiration of the current I-94, depending on the shorter period, to file for a change in status, an extension of your status, or to close your affairs in the U.S.
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Unlawful Presence and Out of Status:
Although being laid off means losing your visa status, it doesn’t mean you are illegally in the country. It would help if you were out of the country for at least 180 days before your presence in America is considered illegal. There are no penalties if you can get back in status.
There are no penalties if you are here for less than 180 days. Many visa holders who lose their jobs use this time for their affairs to settle or make alternative arrangements before they leave America to go home. You can reapply for any visa category you need when you return home if you leave before the 180-day deadline.
You have three choices to keep your legal status.
- Either it would help if you found a job or you could quit your current job.
- Change to a new category or visa; or
- Leave the Country.
Penalties will be imposed on anyone who remains in the country without a visa for more than 180 days.
For three years, USCIS may ban foreign nationals from entering the United States if they are out of status for more than 180 days. USCIS can bar you from entering the United States for up to ten years if you have been out of status for more than a year.
Maintaining Lawful Status
H-1B and L-1 visa holders must buy time to complete their applications, find jobs, and follow the immigration process. USCIS allows employees laid off to apply for a change in status to maintain legal status.
The USCIS has the right to refuse any attempt to change visa categories. Each case is considered individually. The USCIS cannot guarantee that a request for a change in status will be granted.
Many H-1B or L-1 visa holders who seek to change their status return home while they wait for the approval. Unlawful presence can begin immediately if a request for a change in status is denied. Visa holders can also return home to avoid negative consequences.
Former visa holders who cannot return home should file a change-of-status application as soon as possible. USCIS will consider your application more favorable if there is less time between you being laid off and actively trying to change your status.
Many options exist for maintaining lawful status, including H-1B visas and employer arrangements.
Visitors Visa – Anyone laid off can apply for a business visitor visa to help buy time. A B-1 or B-2 visa allows former H-1B and L-1 visa holders six months of legal status to find a solution and find work. A B-1 visa or B-2 visa, unlike L-1 and H-1B visas, does not allow you to work. A B-1/B-2 visa requires you to prove that your finances are sufficient.
Employer Payroll – In some cases, H-1B or L-1 visa holders might be able to stay on their employer’s payroll to maintain their legal status. Employers may offer a financial grace period to allow former employees to keep their visa status while they search for new jobs. Although rare, these arrangements allow employees to keep their visa status intact as long as they receive a salary and are on the payroll.
H-1B Visa – In certain cases, an H-1B Visa may be necessary if you have previously held an L-1 Visa. Changing your visa status to H-1B by a new employer can be difficult. H-1B visas have a maximum annual cap of 65,000 petitions. The annual cap applies to H-1B visa holders who have not been granted one in the past six years.
This means that there may be no partitions available at the time of your application. If this is the case, it is very difficult to change from L-1 status to H-1B visa status.