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Are Some Laid Off L-1 Workers Trying to Go H-1B Instead?

Are Some Laid Off L-1 Workers Trying to Go H-1B Instead

Foreign nationals from other countries working in the U.S. tech sector have taken a hard hit in recent months. Multiple rounds of layoffs have affected primarily L-1 and H-1B visa holders in IT. Thousands of workers have been left scrambling to find new jobs that would allow them to stay in the U.S. Is it possible some laid off L-1 workers are trying to go H-1B instead?

Anything is possible. In fact, we have seen numerous online articles encouraging laid off L-1 workers to look for employment that would make them H-1B eligible. There is just one problem: the H-1B visa program has annual caps.

L-1 Visas for Managers and Executives

As immigration attorneys, we believe it is fair to say that laid off L-1 workers are worse off than their H-1B counterparts. We say this for a couple of reasons. First and foremost is the fact that the L-1 visa is reserved for managers and executives transferring to the U.S. from within the same company.

This automatically puts laid off L-1 workers in a defensive position. They cannot simply go to work for another American company on an L-1 visa. They would have to leave the country, get hired by a new company, then transfer back to the U.S. on a new visa.

The other problem is potentially more serious: L-1 spouses working on L-2 visas are required to stop working when the original L-1 worker is laid off. Now you have two people living in the U.S. with no income and a requirement to leave the country within a given amount of time.

Converting to the H-1B Visa

The plight of thousands of laid off L-1 workers has led to some immigration law experts encouraging they convert to H-1B visas. But again, most H-1B visas are subject to an annual cap. That being the case, there are six options if you miss this year’s H-1B lottery:

  • Try to find a position that can get the employee into the next H-1B lottery and hope for the best.
  • Try to find an H-1B job that is exempt from the annual cap.
  • Apply for a B2 visitor visa to buy some time to figure out what to do next.
  • Enroll in a higher level academic degree to qualify for additional OPT time.
  • Find another work authorized status, such as citizenship-based work visas.
  • Return to your home country.

The benefit of the fourth option is being able to continue living and working in the U.S. for a couple of years following the completion of your course of study. This is possible due to a policy created by a Department of Homeland Security (DHS) and USCIS rule implemented a few years ago.

F-1 For Study Purposes Only

Under the original law enacted by Congress, the F-1 visa was intended for study purposes only. A foreign student could come to U.S. solely for the purposes of studying. At graduation, the student was expected to return home.

DHS changed that with a rule that allowed two things. First, students could begin working here even as they conducted their studies. Second, they could continue working here for up to an additional three years after their studies were complete. On a typical four-year degree program, a student could legally live and work here for up to seven years. However, caution should be taken for work performed prior to graduation since fulltime pre-completion OPT can count against post-completion OPT time. Part-time work typically does not count against post-completion OPT time. 

At any rate, L-1 and H-1B visa holders recently laid off due to tech sector downsizing are struggling to figure out what to do next. Here at Graham Adair, we are immigration law experts who navigate these situations regularly. If we can help, we would be more than happy to discuss your case.

 

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