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H1B workers have limited options to stay in the US if they lose their job. We list options that can be used with their risks and chances of approval by USCIS.
H1B automatically gets up to a 60-day grace period if an H1-B employee was laid off due to circumstances outside his/her control.
During these 60 days:
- H1B and H4 dependents can stay legally in the US.
- H4 EAD can work as long as H1B can legally stay in the US.
Options to Stay in the US after 60 Days
#1 H1B transfer within 60 days
The best option in the case of an H-1B layoff is to find a new sponsor within 60 days.
If you can get severance pay, then you can add those days to your 60-day grace well.
Employment-based immigration attorney Emily Neumann had confirmed earlier that they were successfully able to file an H1B transfer even after 60 days of grace if there were severance paydays available without any issue.
#2 Apply H4, B2, F1 Change of Status
If you are not able to find a new H1B employer till the 45th day of your grace term, we strongly suggest filing any one of these using form i-539 to keep staying in the USA:
- H4 change of status application (recommended) – if your spouse has H1B.
- F1 COS – If you can enroll in any study course with the university.
- Do not try Day 1 CPT as it can create problems in the future.
- You will need to file F2 for dependents. For example, For H4 dependents, file an F2 dependent visa change of status application.
- B1/B2 visitor application – This should be your last option if nothing else works.
- You should file a B1 application if your employer can support it for business purposes and a B2 application for your H4 dependents.
- If the employer cannot support B1, then the whole family can file a B2 visitor application to stay in the US.
In our opinion, filing a change-of-status application to other visa types can help you stay in the US legally with the status ‘period of authorized stay‘ but you will have to file the H-1B COS to return to H1b work visa status.
Problems
- Once you stop working on H1B, you are essentially ‘out of status’.
- Your H4, F1, or B1/B2 COS pending application keeps you in legal status past the H1B 60-day grace period.
- If you file an H1B transfer after 60 days, you should file it as a consular processing application as USCIS may not approve your H1B until COS is approved first.
#3 Go to Canada Temporarily
If you have a Canada PR, visitor visa, or work permit you can visit there for a temporary period and file an H1B transfer once you have a new sponsor.
Once the transfer petition is approved by USCIS, file an H1B visa stamp application with the US embassy, and then return to the United States.
You can explore your options to work from Canada or India remotely on H1-B.
If you already have a valid H1B visa stamp on your passport from an old employer, you can simply enter the US using:
- Old employer Valid H1B visa stamp in the passport
- New Employer’s Approved H1B transfer i797
L1 Job Loss
L1 is an inter-company transfer visa and cannot stay in the US if they lose their job.
You do have the option to file H1B, H4, B1/B2, or F1 change of status applications but chances are quite low for approval as there is no 60-day grace period for L1 visa workers.
- L1 to H1B COS (recommended) – You can fill it only if you have got an H1B approved through the lottery in the past.
- L1 to H4 COS – You can file H4 if your spouse is on an active H1B visa currently.
- L1 to B1/B2 – You can file a business or visitor visa while staying in the US but you will not be able to work until you have any other option or your L1 job gets restored in the future. You will need to file B1/B2 to L1 COS if you get the job back in the future. The maximum time you will be able to stay in the US with B1/B2 is 6 months.
- L1 to F1 (Good option): You can file an F1 study visa and keep staying in the US and studying. It may prove quite expensive with the university fee but you will get time to wait for economic turmoil to get over and file L1 COS again.
If you get a pre-notice from your employer for an imminent firing, your best option would be to file the change of status immediately before your last day at work.
FAQ
You may not be able to file H1B COS after 60 days as you have a pending H4 COS application.
If you do go ahead and file a transfer, USCIS may send an RFE asking you to prove how you have maintained the H1B status.
You will not be able to prove H1B status since your payroll was not running during this time and you have stayed beyond the official 60-day period.
You can file as many applications as you want and withdraw them too.
But the problem you will face is proving the maintenance of status. The chances are very high that USCIS will ask you to prove ‘maintenance of H1B status’.
If you get lucky and USCIS approves your H-1B without RFE, you may face it in the future when you go for a visa interview in the US embassy. They usually issue form 221g to check your past status maintenance.
Your status is legal as long as you are physically present in the US as per the terms and conditions of the visa you used to enter or the one currently printed on your most recent I94.
If you lose your H-1B job, USCIS allows a legal 60-day grace period to maintain your status.
After this period ends, you are considered ‘out of status’ even if your i94 is still valid.
