Frequently Asked Questions Related to Layoffs for H-1Bs and other Foreign Workers

Frequently Asked Questions Related to Layoffs for H-1Bs and other Foreign Workers

How long does one stay in status after a lay-off?

The foreign beneficiary on an H–1B status and his or her dependents are considered to be in a valid nonimmigrant status after termination of employment, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period.

During this period of time they may apply for and be granted a change of employer or change of status, if otherwise eligible.

Can one take advantage of the H-1B portability provisions after a lay-off and transfer to another employer and have the benefit of being able to work for that employer as soon as the H-1 is filed with USCIS?

Yes, it is possible. In order to benefit from the portability provisions, the following requirements must be met:

  • Last entry in H-1B status
  • Not be employed since last entry without work authorization
  • File a non-frivolous H-1B  petition

Is there anything an employer can do to structure a lay-off in a manner that would avoid deleterious USCIS consequences?

Some employers have considered allowing the alien to remain on the payroll and continue receiving regular benefits such as accrued vacation time, and any other payout it deems appropriate.    However, such arrangements might conflict with other labor policies and regulations and will require careful consideration by a company and its labor counsel.  The Wage and Hour Unit of Department of Labor may find that the employee has been “benched” and order back pay for the alien worker, and find continued payroll responsibilities unless there is a clean break, and the termination is evidenced in writing to the alien worker and to USCIS and the Department of Labor through the withdrawal of the Labor Condition Attestation (“LCA”).

What is the worst scenario if the USCIS doesn’t approve the H-1 transfer application?

The underlying H-1 petition would still be approved but the applicant would have to leave the U.S. and apply for a new H-1 visa outside the U.S.

What is the employer’s responsibility when it lays off an H-1B employee?

The employer is obligated to pay return transportation back home.  If there is severance pay, it can be structured so a portion of it reflects the reasonable costs of a return transportation ticket home for the worker.  There is no obligation regarding any other family members.  Of course, most employees do not express an interest to return home but wish to seek alternate employment.

What is the impact on a lay off if an alien worker has filed for permanent residency through a labor certification application filed with the Department of Labor?

It depends on what stage of the application has been processed.

  • Labor certification is pending or is approved.  Nothing can be preserved unless the I-140 is approved.
  • The second stage I-140 petition is filed and approved. The priority date is preserved for any subsequent application. One still needs a new labor certification but the filing date of the first labor certification is retained as one’s priority date.  Preservation of the priority date only occurs if the I-140 was approved. Further, If I-140 remains approved for more than 180 days, and unless revoked subsequently for fraud and misrepresentation, the beneficiary can also take advantage of subsequent H-1B extension beyond 6 years under AC21 portability provisions, even though the I-140 petition was from a different employer.
  • The last stage adjustment of status forms were filed and has been pending for 180 days. At that point, the application becomes portable and one can secure new employment in a same or similar field and still be eligible to adjust their status to green card without filing a new immigrant petition.