I am on an H-1B Visa, Have Just Been Laid-Off, What about the 60-day Rule?

By Edward R. Litwin & Donald E. Smith

Attorneys at Law

Introduction

For persons, who are in the United States in H-1B status and have recently been laid-off or are concerned about their future employment in the United States, this set of Questions and Answers address these issues. Please note, however, this is general information and is not intended to be regarded as legal advice, as each situation can be varied and complicated, their particular facts should be reviewed in light of the applicable law and practical concerns specific to them.

If I am in H-1B status and am laid-off, am I considered to be out of status?

Laid Off H-1B Employee

When H-1B employment ends the H-1B employee is immediately out of status. The employer must file a withdrawal of the H-1B employment petition with the USCIS. The filing of the withdrawal protects the employer and also puts the USCIS on notice that the employee is out of status. A new H-1B employer's petition will not subject to the H-1B cap.

Although out of status you remain in a period of authorized stay in the US until the expiration of your I-94 admission or approval. You may consider a change to B visitor if you file before you are laid off or within 60 days. If you remain on H-1B you have until the end of your I-94 period of authorized stay to find new employment.

H-1B Portability Provisions of INA § 214(n), AC21 § 105 provide should a new H-1B employer be found within I-94 validity the new employer may file an H-1B change of employer petition on your behalf. The H-1B beneficiary with a change of employer petition filed within their I-94 validity may begin employment with a new employer upon USCIS receipt of the new employer's H-1B change of employer petition.

It is in the USCIS discretion to approve the new employer's petition and extend your stay in the US without requiring you to leave the US. The I-140 Final Rule memorialized USICS practice to approve H-1B change of employer petitions AND the extension of H-1B stay in the US for petitions filed within 60 days of the last paystub. Where the paystub is evidence of status.

The 60-Day Rule 8 CFR § 214.1(l) Period of Stay

The I-140 Final Rule effective February 17, 2017 provides an alien admitted or otherwise provided status in H-1B classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien's classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. DHS may eliminate or shorten this 60-day period as a matter of discretion.

Some attorneys distinguish between an employer lay-off and employee termination. We do not see this distinction in the final rule and consider the reference to 'cessation' of employment to cover either circumstance. Note the 60 days grace period in the final rule has the proviso, that DHS may eliminate or shorten this 60-day period as a matter of discretion. Ostensibly, this might occur when adjudicating a subsequent petition.

The 60 days grace period memorialized what had been an inconsistently applied unspoken policy of the Immigration Service when persons are laid-off. The 60 days policy that a person who is laid-off, finds another job and files a new petition within 60 days of the lay-off, will not be considered to be out of status may still leave the person immediately out of status if a new H-1B employer fails to file an H-1B petition on their behalf or fail to file a change of status application within the 60 days.

I have heard that there is a "grace period" is that not true?

Under the I-140 Final Rule, there are three grace periods. 10 days for admission, 10 days after I-94 admission validity, 60 days after cessation of employment within the validity of the most recent I-94.

Depending on whom you talk to or what web sites you read, grace periods anywhere from 10-90 days were often mentioned. Following the I-140 Final Rule, most recent websites reference the 60 days grace period. Under the I-140 Final Rule, there are three grace periods. 10 days before the validity period begins, 10 days after the validity period ends, and 60 days after cessation of employment within the validity of the most recent I-94. It is important to note the 60 days grace period is limited to the validity of the most recent I-94. It is also important to note that unless authorized under 8 CFR 274a.12, as discussed below, the H-1B may not work. Unauthorized employment will void any grace period and/or I-94 validity and begin the accrual of unlawful presence.

Does the H-1B employer have to notify the Immigration Service if I am laid-off?

The regulations do require an H-1B employer to notify the Immigration Service upon the termination of employment. Although, there is no penalty associated with the failure to do so. Case law has found H-1B employers required to make a lawful termination or be liable for back pay where the USCIS has not been notified by the employer of a termination. Under most circumstances, it is prudent for the H-1B employer to notify the USCIS of a termination, most employers do.

If I am laid-off do I have to leave the United States?

This is actually a very complicated question to answer. Of course, the Immigration Service would like to see everyone who is laid-off leave the United States. As a practical matter, however, any person who is laid-off usually tries to find new employment, whether he/she is a U.S. Citizen, Permanent resident or in a nonimmigrant employment status. Finding a new job takes time. In addition, if a person leaves the United States it is highly unlikely, they will be able to find a job or attend interviews. For that reason, most persons who are in a nonimmigrant employment status and have been laid-off continue to remain in the United States within the 60 days grace period seeking other employment.

Depending on whom you talk to or what web sites you read, one is advised to depart the U.S. at the end of the 60-day grace period. For persons in the U.S. in the various nonimmigrant employment status of E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification this may be good general advice. The 60-day rule within I-94validity provides an extension of status for 60 days. However, the H-1B employment visa that permits immigrant intent may consider remaining in the U.S. for the entire validity of the I-94 stay.

The 60-day rule within I-94validity provides an extension of status. Within I-94 validity after the 60 days, the laid-off person remains in a period of authorized stay in the US. Unless the person works without authorization. If one works without authorization the person immediately begins to accrue unlawful presence. If the person does not work without authorization the H-1B beneficiary will be out of status until the end of I-94 validity but does not accrue unlawful presence until after I-94 validity.

While 180 days of unlawful presence makes the person subject to a 3-year bar from returning to the US and 365 days of unlawful presence makes the person subject to a 10-year bar. Should the H-1B beneficiary find employment when out of status, after the end of I-94 validity, and depart the US before 180 days the H-1B beneficiary will not be subject to the 3-year bar and may be granted an H-1B visa for return to the US in H-1B status for H-1B employment.

The difference for nonimmigrant employment visas that do not permit immigrant intent; E-3 H-1B1, and TN remaining in the U.S. after the 60 days grace period may imply an immigrant intent preventing a consular officer from issuing an additional visa or a border officer from granting an admission.

But what about the 180-day rule?

There are two 180-day rules. The first one states that if a person in the U.S.has been out of status for more than 180 days and they desire to apply for adjustment of status, they will be ineligible to do so and will, therefore, have to go back home in order to finalize their permanent residence processing. This is not an onerous penalty, since many people, each year, choose to complete their processing overseas, even in cases where they are not required to do so. In addition, the law states that an adjustment applicant cannot have been out of status for 180 days since the last entry. So, this "180- day rule" can be negated by simply traveling outside the United States, obtaining a new visa, and returning to the United States. Therefore, leaving and returning to the United States, normally "cures" this 180-day penalty.

The other 180-day rule arises when a person remains beyond their authorized stay for 180 days or more. If a person remains more than 180 days beyond their authorized stay then leaves the United States, he/she cannot return for three years. (A person who remains more than one year beyond his/her authorized stay and leaves the United States, cannot return for ten years.) But the person must remain "beyond their authorized stay" not merely be out of status. For example, if a person has H-1 status authorized until January 2021 and is laid-off today, he/she will not stay beyond their period of "authorized stay" until after January of 2021.

The other way that a person "remains beyond the authorized stay" is when the Immigration Service finds out that he/she is no longer in status and orders them to leave the U.S. It is only in either of these two situations that this 180-day rule is applied. Therefore, theoretically, the person in this example who is laid-off today has until 180 days after January 2021 to find a job, and until then will not have to fear the 3-year/10-year penalty. Because most employers now notify the USCIS of employment termination, there is a good chance that the USCIS will issue a notice of revocation prior to the date that they are authorized to stay in the U.S.

Generally, persons with H-1B nonimmigrant employment visas that permit immigrant intent may remain in the U.S. for the full validity of their I-94. After the 60 days grace period the laid-off H-1B person remains in a period of authorized stay in the US within their I-94 validity and do not suffer the possible consequence of immigrant intent. Persons in H-1B period of authorized stay finding a new employer within the validity of their I-94, even after the 60 days grace period, may be petitioned by the new employer with an H-1B change of employer petition and begin employment with the new employer upon USCIS receipt of the H-1B change of employer petition.

After the I-94 validity, the laid-off H-1B person remains in the US outside a period of authorized stay in the US and accrue unlawful presence, but do not suffer the possible consequence of immigrant intent. Persons in H-1B accruing unlawful presence less than 180 days finding a new employer, after the 60 days grace period, after I-94 validity, within 180 days of unlawful presence, may be petitioned by the new employer with an H-1B new employment, not subject to the H-1B cap petition, and begin employment with the new employer upon USCIS approval for consular processing, obtaining a new H-1B visa, and being admitted in H-1B status for H-1B employment with the new employer. It may sound scary and it is. But, definitely possible and has been done.

The exception for persons with nonimmigrant employment authorization is if the person works without authorization. If one works without authorization the person immediately begins to accrue unlawful presence. If the person does not work without authorization she, or he, will only accrue unlawful presence after expiration of the I-94 validity. She or he may accrue less than 180 days of unlawful presence and still return to the U.S. on nonimmigrant visas that permit immigrant intent. But, 180 days of unlawful presence will make a person subject to a 3-year bar from returning to the US and after 365 days of unlawful presence, the person is subject to a 10-year bar.

What About Changing Status?

The I-140 Final Rule provides that a person admitted in H-1B status or granted H-1B authorized period of stay under the 60 days rule described in paragraph 8 CFR § 214.1(l) may apply for and be granted a change of status under 8 CFR 248.1, if otherwise eligible.

What are my alternatives?

A person in H-1B status who has been laid-off has a number of alternatives:

  1. Leave the United States immediately - Very few people are interested in taking this option. Many H-1B visa holders have developed their lives in the United States and are interested in finding other work and continuing to remain in the United States;
  2. Change status - Within the 60 days grace period a person who is laid-off may file an application to change to B-2 (visitor or tourist) status. Our firm does not generally recommend this for these reasons: 1) within I-94 validity the person has 60 days to find new employment exists for several months it is better to be in the US with the longer than 6 months validity a change of status will provide, 2) an employer may file a change of employer petition for a person within H-1B I-94 validity and the person may begin employment upon USCIS receipt of the change of employer petition, 3) a person granted B-2 status cannot be petitioned by an employer for a change of employer petition and cannot begin H-1B employment until an H-1B change of status petition is approved, 4) to be granted B2 status the person in H-1B status must convince the Immigration Service that s/he is merely here visiting, vacationing or doing other things not related to business or employment. Since, in actuality, most people who have been laid-off are looking for another job, a question as to their truthfulness could arise;
  3. Remain in the United States and look for a job - most people choose this alternative. Keeping in mind that the H-1B person is generally out of status after 60 days, but in a period of authorized stay within the validity of the I-94 and a new H-1B employer may file a change of employer petition for the H-1B within the validity of that I-94 and the H-1B may begin employment with the new employer upon USCIS receipt of the change of employer petition, and finally, keeping in mind the 180-day penalties mentioned above, most people have an adequate amount of time to find another job, and file for a new H-1.

Isn't it harder for a person to find another job who is in the United States on an H-1B following the 2017 Buy American Hire American Executive Order?

There is no question that the USCIS adjudication of H-1B specialty occupations is more rigorous from what it was a number of years ago under the Buy American Hire American Executive Order. In order to find a job, people have always had to promote themselves and convince a potential employer that they should be hired based on skills, expertise, and ability over someone else who may also be applying for the job. Notwithstanding the current USCIS adjudication environment, many employers are still hiring persons with specialized knowledge gained from a specific specialty degree required to perform the specific specialized duties of the position.

Frankly, many U.S. workers do not have the specialized knowledge required to perform the specialized duties of most qualifying H-1B positions. Employers are hiring H-1B employees in specialty occupations where U.S. workers with the requisite specific specialized knowledge are generally unavailable.

The good news for a person who has been on H-1B status is in a period of authorized stay until the end of their H-1B I-94 validity. Within their I-94 validity, the H-1B beneficiary is eligible to begin working for a new employer as soon as a new employer's H-1B change of employer petition has been receipted by USCIS. This places them essentially on par with their U.S. employee competitors who can be hired in a relatively short period of time. Thus, the playing field is, more or less, level allowing employers to choose between the best-qualified person. Whether the person is a U.S. worker or an H-1B worker.

If I find a new job, do I have to tell the Immigration Service that I was laid-off?

There is no requirement that an H-1B employee must inform the Immigration Service that they were laid-off by a previous H-1B employer. While it is necessary for the applications to be truthful, there is no requirement that the H-1B employee's current employment status be explained to the Immigration Service unless it is beneficial to the employee.

The Immigration Service does require recent pay stubs to verify whether the individual has maintained H-1B status or the 60 days rule is applicable. Where the H-1B has been unemployed for a lengthy period of time. The Immigration Service will generally approve the underlying H-1B petition, but often deny the H-1B extension of stay. However, we have seen H-1B extensions of stay granted even when the H-1B beneficiary has been unemployed for several months.

In the situation where the H-1B petition is approved .and, the extension of stay is denied, the individual must depart the United States to be admitted in H-1B status for H-1B employment. Where the individual has a valid passport and current visa the H-1B beneficiary may depart the US and make a new admission in H-1B status to return to the H-1B approved employment. Where the H-1B beneficiary visa is expired the beneficiary must go back to their home country and apply for a new visa to return to the United States for admission in H-1B status for H-1B employment.

While it is frequently time-consuming and expensive to make such a trip home, most consulates are issuing such H-1B visas quite readily absent issues of the beneficiary's qualifications and qualifying employment that the US Consul determines USCIS was unaware. Generally, it is less likely for a U.S. consul to find a beneficiary approved for an H-1B or the offered employment approved for H-1B to be non-qualifying following the Buy American Hire American Executive Order extreme vetting of H-1B petitions by USCIS determining the beneficiary's qualifications and the offered employment is qualifying.

If I am not granted a change of employers and must leave the United States am I guaranteed that I will return?

There is no guarantee when you are dealing with agencies of the U.S. Government. However, if all of the rules are followed and no misrepresentations are made, the consulates have been willing to issue new visas.

What if I have already filed for Permanent Residence?

A person in H-1B status who has filed for permanent residence may have some additional areas of relief available to them with employment authorization on EAD. Under current law, a person whose I-140 approved (and labor certification certified, if required) and I-485 application for adjustment of status to lawful permanent residence has been pending for more than 180 days, may "port," that is, leave their present employer and find new employment in a same or similar position, and still continue their permanent residence process.

The new employment must be a job, which is the same, or similar to the job for which a labor certification was received or I-140 approved. It is very clear that a person who has been laid-off after 180-days can make use of this provision. It is not clear, however, whether a person who is laid-off prior to the 180-day mark but whose case is not adjudicated until after 180-days is eligible to make use of this provision. (However, if the I-140 is denied or the employer revokes the I-140 before 180 days, the porting option will not help.)

In light of the regulations, a strong argument can be made that a person who has applied for adjustment of status and is laid-off, even only a few weeks after filing, can use this "porting" provision as long as it takes the Immigration Service longer than 180-days to adjudicate their application. Therefore, a person would be able to continue processing their permanent residence as long as they have found a job which is the same or similar to the job which they were doing for their labor certification or approved I-140. This is extremely delicate and complicated, and the ramifications need to be discussed thoroughly with your attorney.

What other options may be available to me?

The options discussed above are the most common. However, numerous other options are potentially available including:

  1. Apply for a change to F-1 status (student) and attend school to obtain an additional or advanced degree.
  2. Marry a United States Citizen - some people are engaged to be married to U.S. Citizens when they are laid-off, although they may not intend to get married at this time. A layoff may prompt them to shorten the waiting period to their marriage. Marrying a permanent resident, however, is a much lengthier process, taking up to 6 years before a person can obtain permanent residence. Also, marriage to a permanent resident will not, by itself, allow a person to remain lawfully in the United States, during the pendency of the process.
  3. Start your own business - under certain circumstances a person can incorporate their own business and that corporation can petition for them to obtain H-1B status. This option has a number of potential pitfalls, but under the right circumstances, with the Employer-Employee Memorandum and Buy American Hire American Executive Order in mind, may be available.
  4. Become an investor - The United States has treaties with a number of countries throughout the world which allows its citizens to invest a substantial amount of money in the United States and remain here. Such people are called "Treaty Investors." There is no magic number as to the amount the investment must be, however, persons than less than $50,000.00 dollars to invest would have difficulty to qualify.

How to Get More Information

This document answers most of the frequently asked questions which we receive in our office about "lay-offs." If after reading this you have a question on working in the United States or any other immigration matters, you may call our offices and arrange an appointment at either our South San Francisco or Santa Clara offices. There is an initial consultation fee for the first half-hour. The information in this article does not constitute legal advice. The law is constantly changing, and we make no warranty of the accuracy of information.


AMERICAN COMPETITIVENESS IN THE TWENTY-FIRST CENTURY ACT OF 2000, 2000 Enacted S. 2045, 106 Enacted S. 2045, 114 Stat. 1251

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