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Hiring Laid-Off H1B Visa Holders

Significant layoffs in the technology industry have put pressure on many current H-1B visa holders who have just been let go. Employers who choose to fire a worker in the country on an H-1B visa release their sponsorship. As such, the employee’s visa no longer allows them to remain in the country until its original expiration date. Once they have been fired, they have 60 days from their final day of employment to find new qualifying work, request a different visa, receive their green card, or leave the United States. 

Most H-1B workers who are laid off are simply the victims of economic circumstances that require companies to cut headcount. They are still experts in their field, with all the qualifications and skills necessary to receive one of these highly competitive visas. They also have lives built in the United States and are motivated to remain here. 

This leads many hiring teams to ask an important question: is it possible to hire these workers once their original employer has laid them off? 

Can Companies Hire Laid-Off H-1B Workers?

While widespread layoff put many H-1B workers in a difficult situation, they offer an opportunity to employers nationwide. People who have already received an H-1B visa do not count against the new visa limit associated with the annual lottery performed by USCIS. Once a visa has been issued, it can be renewed for up to six years as long as the recipient continues to meet its conditions. 

Critically, these people must find new work in their field for a qualifying employer within 60 days of termination. Companies can hire these workers by filing a change-of-employer petition with the United States Citizen and Immigration Services (USCIS) agency. 

In fact, employees laid off while in the United States on these visas are significantly easier to hire than people who have not yet received them. Layoffs at major tech companies may allow businesses like yours to hire skilled international employees without going through the H-1B lottery process. 

How to Hire Laid-Off H-1B Workers

While hiring an H-1B visa holder after they have been laid off by another company is less difficult than going through the entire application process, it is still a complex and time-sensitive process. If you do not submit a change-of-employer (COE) petition within two months of their final day of employment, their visa expires, and they may be forced to leave the country. Here’s how the process works:

  • Get a Labor Condition Application (LCA) certification: This is frequently the most complex part of hiring H-1B employees who already have visas. An employer may only hire H-1B visa holders if they have an LCA certification. Suppose you are considering hiring H-1B workers now or in the future. In that case, starting the certification process immediately is worthwhile because the Department of Labor states it may take at least 60 days to receive a determination.
  • File an I-129 form and associated documentation: This is the actual H-1B transfer petition. An employer must submit it for the worker they want to hire. Alongside the petition, they must submit documentation proving the identity and qualifications of the employee. Frequently, employees already have the necessary documentation because they have successfully been granted a visa. However, if details have changed, it may be necessary to get new information. 
  • Pay fees: Employers must submit fees associated with the I-129 form, the American Competitiveness and Workforce Improvement Act, and Fraud Prevention and Detection. It is also worthwhile to pay the optional Premium Processing fee to ensure a fast response.
  • Wait for notice of receipt to begin work: USCIS will send a receipt indicating it has received the application. An employee can start work as soon as this is received. This receipt must show that USCIS received the petition within the 60-day grace period or the employee’s visa is at risk. 
  • Wait for approval or denial: If the petition is approved, the employee may continue to work for you. However, if the petition is denied, they must halt work immediately. 

Missing any of these steps or deadlines can put an employee’s visa and future on the line, and mistakes can be costly. If you are considering hiring an H-1B visa holder, it is in your best interest to consult with an experienced employment immigration attorney, such as the skilled lawyers at Litwin & Smith. We will help you file your change-of-employer petition accurately and on time, allowing you to hire qualified employees without the risks of the full H-1B lottery.

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