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H-1B Layoffs: Filing for a Tourist Visa as a Last Resort

H-1B Layoffs: Filing for a Tourist Visa as a Last Resort

Although the H-1B visa program affords the opportunity to work in the U.S. for tens of thousands of workers annually, things do not always go as planned. H-1B workers can, and do, get laid off from time to time. We saw a wave of layoffs in 2022 and again in 2023. Although laid off H-1B workers can file for a different U.S. immigration status, many don’t have that option. 

The 60-Day Grace Period

A laid off H-1B worker is not required to leave the country immediately. Instead, they are automatically afforded a 60-day grace period. During that time, the worker can assess their options before making a choice. The three options are:

  1. H-1B Transfer – A worker’s H-1B visa can be transferred to a new employer without having to put the worker back into the lottery system. The employer still needs to file a petition which must be approved by USCIS.
  1. New Visa – A worker laid off from an H-1B-eligible job can apply for a new (different) visa during the grace period. This is where the idea of applying for a tourist visa comes in sometimes, although it should really just be considered an option of last resort.
  1. Leave the Country – The final option is to tie up loose ends and leave the country. Although unfortunate, some former H-1B workers find they are left with no other choice.

The most important thing to remember here is the 60-day grace period. A laid off worker really needs to take advantage of this time if they hope to stay in the U.S. A bit longer.

Transferring an H-1B Visa

Although a new employer looking to hire a laid off H-1B worker is not starting over from scratch, a transfer approval results in a new H-1B visa being granted – at least procedurally. But making all this work requires that the new employer files the transfer petition within the 60-day window.

What if the employee has already applied for a tourist (B1/B2) visa? A transfer petition can still be filed for consular processing, in which case it would be considered pending. Meanwhile, the tourist visa application is also pending. The employee in question would have to leave the country and re-enter should their H-1B petition be approved.

Sometimes the easiest way to do this is to take advantage of a process known as Third Country National (TCN) processing. The worker would leave the country and perhaps go to Canada for example, then head to the consulate to get an H-1B stamp.

The Tourist Visa Option

Laid off workers can begin looking for new jobs within their grace periods. Grace periods begin immediately following the last pay period applicable to the laid off worker’s job. Let us say the grace period is quickly closing and a laid off worker still has not found work. Some have opted to apply for a tourist visa to get up to six more months of time to search for new employment. During those six months, the laid off worker agrees to not work without authorization.

The worker must also certify that:

  • The layoff was unexpected and new work has not yet been found;
  • He or she has enough money to remain self-sufficient; and
  • He or she has not broken any laws while in the United States.

It should be obvious at this stage that applying for a tourist visa is not the best scenario after being laid off from an H-1B job. However, it is an option some have considered when all others fail. Here is hoping that you or your foreign-born workers never have to figure all of this out.

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