Lay-offs are, unfortunately, a relatively common business necessity, particularly in tough economic times like those we have seen in recent years. Lay-offs are stressful and challenging for any employee, but a lay-off can be particularly detrimental for foreign nationals who are in the U.S. under a work visa.
If you are a foreign national who has been laid-off, or expect to be laid-off, you probably have several questions and concerns about what happens to your immigration status.
The consequences of a lay-off on immigration status vary depending on a number of factors. For instance, employees with an H-1B visa who are given advance notice of the lay-off can file a Form I-129 seeking to change employers without being required to leave the U.S. The I-129 petition must be filed prior to the termination of the applicant’s job, however. If the petition is filed after the dismissal, the foreign national will need to return to his or her home country while the new H-1B visa application is pending.
If, on the other hand, an H-1B visa holder is laid-off without advance notice, the terminated H-1B nonimmigrant is not allowed to transfer the visa to another employer, unless he or she qualifies for certain discretionary exceptions. Depending on the individual’s circumstances, however, the H-1B worker may be eligible to stay in the U.S. due to a request for a change of status or for extension of stay that is filed while the individual is maintaining H-1B status, or on account a pending adjustment application.
Like H-1 B visa workers, nonimmigrants holding an E visa, L visa, O visa, or P visa will not be considered to maintain valid status as of the day the employment is terminated. Unfortunately, there is no grace period, so once the nonimmigrant is laid-off, he or she must leave the country. The individual may, in some circumstances, be able to request a change of status or extension of stay while the individual is still employed.
U.S. employers are required to notify United States Citizenship and Immigration Services of any H-1B visa lay-offs or terminations.
Contact an Employment Immigration Lawyer
If you are a foreign national who was recently laid-off, or expect to be laid-off soon, you need an immigration lawyer to help you maintain legal status in the country. It is important to act quickly if you think that a lay-off is on the horizon so you should not delay.
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