Layoffs and Immigration

Layoffs are in the news this week, sadly, with several technology companies announcing various cuts.

Here are a few bullet points about layoffs and immigration status:

  • 8 CFR 214.1(l) allows up to 60 days for persons with common work visas to apply for a different status, after a layoff. Specifically:

(2) An alien admitted or otherwise provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien’s classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. DHS may eliminate or shorten this 60-day period as a matter of discretion. Unless otherwise authorized under 8 CFR 274a.12, the alien may not work during such a period.

For a tech worker, this means that they need to find a new employer or otherwise get a change of status petition filed before 60 day are up. Petitions should be filed while in status. It is tough to get the agency to exercise favorable discretion on a petition when out of status, and an individual out of status starts accumulating time towards other penalties. If a job isn’t available, perhaps it is possible to change to a student status. In some cases, an entrepreneurial self-petition might be possible. The individual can also leave the country in that timeframe, but should not apply for readmission in that status, without a new sponsor or status.

  • H-1B employers are responsible for “reasonable costs” of transportation to the “last place of foreign residence” for laid off H-1B workers. 8 CFR 214.2(h)(4)(iii)(E). Many will offer return airfare if accepted within a reasonable period (e.g. 60 days). The return transportation rule doesn’t account for family members.
  • Employers who lay off an H-1B worker need to do so in writing, inform USCIS in writing, and withdraw the labor condition application.  If they do not do this, they may be at risk for a complaint of “benching” and liable for pay even after the layoff.
  • Violating U.S. immigration law has consequences. Persons out of status in the United State for more than 180 days, who then depart, are subject to a three-year bar from returning. Persons who stay in the U.S. for more than a year out of status, and then depart, are subject to a ten-year bar from returning. ANY time out of status may impact future applications, in terms of required disclosures, consulates for visa interview, visa eligibility, and other considerations. It’s always best to be able to say you’ve never violated U.S. immigration laws.
  • Layoffs impact labor certification applications. Employers file labor certifications to establish there are no minimally qualified U.S. workers for a job. If a company has laid off workers in the occupation or related occupations within the last 180 days, the employer must document that they notified and considered all potentially qualified laid off U.S. workers. 20 CFR §656.17(k).