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What Happens to a Non-Immigrant Employee Who Gets Laid Off?

What Happens to a Non-Immigrant Employee Who Gets Laid Off

Non-immigrant employees and their employers often need to jump through hoops to satisfy the requirements of immigration law. Bringing foreign born workers into the country is rarely easy on either party. But what happens when things don’t go as planned? What happens to a non-immigrant employee who gets laid off prior to visa termination?

Under normal circumstances, non-immigrant employees are likely to think that they have no other choice but to leave the country within 60 days. But that is not necessarily true. There are workarounds to being laid off, workarounds that are at least worth exploring. Here are just four possibilities:

1. File for a Change of Non-Immigrant Status

Non-immigrant employees are automatically given a 60-day grace period upon termination of employment. During that period, an employee could file an application to change their status. As long as the filing is deemed non-frivolous, accruing time against the grace period is paused while the case is adjudicated. Even if adjudication takes a year, no additional time will be accrued against the employee’s automatic 60 days.

Filing for a change of status could mean:

  • Filing as a student.
  • Filing as the dependent of a spouse.
  • Filing to seek new employment under the same or a different status.

Once again, the key here is filing a non-frivolous application. A claim deemed frivolous would be rejected and accrual against the 60-day grace period would continue unabated.

2. Filing for an Adjustment of Status

Without the help of an employer, filing for a change of non-immigrant status may be difficult. A second option is for the employee to self-petition the government for an adjustment of status. This particular option isn’t open to all workers under every type of employment visa. However, it does give those eligible workers an opportunity to remain in the U.S. while seeking to obtain a temporary Employment Authorization Document (EAD).

3. File for a Compelling Circumstances EAD

An EAD is a temporary work authorization document allowing non-immigrant workers to remain in the U.S. for a predetermined amount of time. Similarly, the Compelling Circumstances EAD is a temporary stopgap that allows qualified workers to remain here while they seek permanent resident status.

Generally speaking, non-immigrant employees who successfully petition for an EAD will not accrue unlawful presence time in the U.S. as long as the EAD remains in force. Note that certain eligibility requirements are attached to the Compelling Circumstances EAD.

4. File a Petition to Change Employers

U.S. immigration law allows job portability among nonimmigrant workers who may be laid off before visa expiration. For example, eligible H-1B workers can search for new employers willing to file new petitions on their behalf. An approved petition would extend the amount of time the worker could remain in the country.

Similarly, a non-immigrant worker with a valid adjustment of status application pending for at least 180 days might be able to transfer a current work petition to a new employer within the same or a similar work classification.

It should be noted that all these options are subject to strict rules and qualifications. There is no guarantee that a laid off worker would qualify for any of them. However, the four options are worth looking into should an affected worker decide not to return home.

If any of your non-immigrant employees are facing potential layoff, we may be able to help. Graham Adair immigration attorneys can look at your cases and offer sound advice regarding how you might proceed. There may be a way to keep those employees in the country.

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