Until recently, nonimmigrant workers (e.g. H-1B) that were laid off fell out of status immediately. A new rule, effective Jan 17, 2017, grants a discretionary 60 day grace period to nonimmigrants with O-1, H-1B, L-1, TN, E-1, E-2, or E-3 class visas following the end of their employment. Upon termination, you have up to 60 days – or until the expiration date of the current I-94, whichever period is shorter – to apply for a change of status, extension of status or simply wrap up your affairs in the U.S.

Out of Status and Unlawful Presence

While being laid off from your job means the loss of the existing visa status, it does not mean you are in the country unlawfully. To have your presence in America be considered unlawful, you must remain out of status for 180 days. If you are able to get back into status, then there are no penalties.

There are also no penalties if you stay in America for less than 180 days. Many visa holders that lose their jobs use this time to wrap up their affairs or make alternate arrangements and then leave America to return home. If you leave before the 180 days expires, you may reapply for any visa category that applies when you return home without prejudice.

In order to remain in lawful status, you generally have three options.

1. You must either find a new job;
2. Switch to a new visa or immigration category; or
3. Leave the country.

If you remain in the country out of status for 180 days or more, you will begin to accrue penalties.

Foreign nationals that remain out of status for 180 days may be barred from reentering the United States for three years. If you are out of status for a year or more, USCIS may bar you from reentering the United States for ten years.

Maintaining Lawful Status

In general, both H-1B and L-1 visa holders need to buy themselves time to prepare applications, search for jobs and go through the immigration process if applicable. USCIS allows laid off employees to apply for a change of status in order to retain lawful status.

All attempts to change visa categories are at the discretion of the USCIS. Each application is decided on a case-by-case basis. There is no guarantee that USCIS will grant a change of status application.

Many H-1B and L-1 visa holders that seek a change of status go home while their application for change of status is pending. In cases where a change of status application is denied, unlawful presence begins accruing immediately. Going home also helps visa holders avoid the consequences of a negative decision.

For former visa holders that cannot go home, the sooner a change of status application is filed, the better. The smaller the gap between being laid off and proactively attempting to change your status, the more favorably USCIS will view your application.

Some options to maintain lawful status include but are not limited to employer arrangements, H-1B visas, and B-1/B-2 visas:

Visitors Visa – In order to buy time, anyone who has been laid off may consider applying for a business visitor’s visa. If approved, a B-1 or B-2 visa provides former H-1B and L-1 visa holders with six months of lawful status to identify a solution and find a new job. Note that unlike the L-1 and H-1B visas, a B-1 or B-2 visa does not permit you to work. Part of the requirements for receiving a B-1/B-2 visa is demonstrating that you have the finances to support yourself.

Employer Payroll – Additionally, in some cases H-1B and L-1 visa holders may be able to arrange to remain on their employer’s payroll to retain their lawful status. Under these circumstances, employers may seek to provide a financial grace period that allows former employees to retain their visa status until they find new jobs. While rare, such arrangements allow employees to continue to maintain their status as long as they are on the payroll and receive a salary.

H-1B Visa – In some cases, an H-1B visa may be appropriate if you once held a L-1 visa. Changing visa status to an H-1B through a new employer can be very difficult. H-1B visas are subject to maximum annual caps of only 65,000 petitions. If you have not held an H-1B visa within the last six years, you will be subject to the annual cap, which means it is possible that there may not be any petitions left at the time you apply. If this is the case, then it is difficult to go from an L-1 to an H-1B visa status.

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*The content and materials available via Ask Ellis are for informational purposes only and do not constitute legal advice.