Mass layoffs across the tech industry have caused a ripple effect as thousands of workers lost their jobs at Twitter, Amazon, and elsewhere this year. And at least 45,000 of these workers are individuals who live and work in the US pursuant to H-1B status.
So what can be done to keep H-1B visa holders in the country?
Each situation is unique, but employers, attorneys, and others can follow certain steps to keep these vital employees in the country.
An H-1B visa is temporary and employer-specific, meaning the worker is only authorized to work for their employer sponsor. In addition, an H-1B employer is not obligated to continue to employ the worker for the duration of their visa—the employer-employee relationship can be terminated at any time.
When an H-1B holder is laid off, their status and ability to remain in the US is jeopardized. In most cases—but not all—the H-1B holder has 60 days to either find another job, apply for another status (and options are extremely limited), or they must leave the US.
If they do find another job, the new employer must file an H-1B petition on the worker’s behalf within the 60-day period. If they do not change employers, change to another status, or leave the country, they will accrue unlawful presence in the US, which carries significant consequences, including potential deportation and the inability to return to the US.
Clock Is Ticking
To provide further context, an individual is only able to hold H-1B status for a total of six years unless they have reached certain milestones in the permanent residence (green card) process. The employment-based green card process, similar to H-1B, is employer-specific, and it can take upwards of 18 months to get through the initial stages.
For some, the entire process can take decades due to congressionally mandated quota systems.
When an employee is laid off in the middle of this process, especially if they are at the end of their six years of H-1B status, it can wreak havoc on their lives. If they have not reached certain milestones and don’t have enough time left to start over, a new employer simply will not have enough time to get through the necessary steps that would allow the H-1B holder to be able to remain in the U.S.
These are people who have lived in the US for years. They have graduated from US universities and have worked hard to build their careers in this country. And many are married, have US-citizen children, own homes, and pay taxes.
Yet none of those positive factors can keep them here.
How to Stay
One of the most heart-wrenching phone calls we have to make as immigration attorneys is to tell someone who has built a life here that they have to pack up their family and leave.
At the end of the day, we must remember that each of these workers is a human being—a human being who has left everything that they know to come to this country to pursue their dreams and has contributed a great deal to our society.
So how can these negative impacts be mitigated?
For the H-1B holder, in some circumstances they may be able to enroll in a university program and change their status to a student visa. Or, if they are from one of the very few countries where the US has a specific treaty, they may be able to change to another work-authorized status.
But even these visa options require employer sponsorship, and with layoffs and hiring freezes, finding another employer for any type of visa may become more difficult.
A common question we receive is whether having a US citizen child allows an H-1B holder to remain in the US. The short answer is no.
The parent of a US citizen can only be sponsored by their child if that child is at least 21 years old.
What Employers Can Do
For employers, they can help mitigate an employee’s risk of falling out of status by considering the timing of severance for impacted workers. The 60-day grace period starts from the issuance of the last pay statement.
Employers can also offer to allow the impacted employee to discuss their particular situation with the company’s immigration counsel, who will be familiar with the employee’s situation.
Employers are obligated to offer the reasonable cost for a one-way flight to the H-1B holder’s home country or country of last residence. They are also obligated to notify US Citizenship and Immigration Services of the employment termination.
It is important to note that each situation is unique, and a solution for one laid-off H-1B worker may not be feasible for another. Employers and H-1B holders should seek immigration counsel in exploring options for an H-1B holder to remain in the US post-layoff.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Maxine D. Bayley is a partner at Duane Morris. She practices in immigration law and represents clients in matters involving the employment of foreign nationals in a variety of industries, as well as individual matters including family-based permanent residence and naturalization.