Tech Layoffs and the H-1B visa

Glen D. Wasserstein, Managing Partner of ILG, specializes in immigration law, focusing on E-2 Investor Visas, L-1 visas, H-1B visas, and federal litigation. With a background in international relations, he founded ILG in 1996 and has addressed human trafficking at the United Nations Convention on Crime.

Table of Contents

With large US Tech firms such as Meta, Twitter and Amazon announcing thousands of layoffs this week, H-1B visa holders have reason to be especially nervous. While a job loss is always unfortunate, for H-1B visa holders, a layoff can carry severe consequences, upending careers and families.

An H-1B visa is often the only practical way to hire a foreign national long term, particularly a recent international student. At U.S. universities, international students account for over 72% of students studying computer and information sciences. US employers do not have the option of hiring only Americans.

Employer Considerations

Laying off employees in H-1B status carries additional rules to follow. When an employer lays off an H-1B visa holder, three obligations are triggered,

  1. USCIS regulations require the employer to notify USCIS of any ‘material change’ in the terms or conditions of the H-1B’s employment, and a termination or layoff is such a ‘material change.’
  2. The Immigration and Nationality Act also requires employers to pay the ‘reasonable costs of return transportation to H-1B workers terminated before the end date of their H-1B authorized stay.
  3. US Department of Labor regulations require an employer to continue paying the H-1B employee’s salary until the employer notifies the H-1B worker of the termination and complies with the first two obligations.”

Employee Considerations

Employees in H-1B status may face significant consequences when laid off from a job. Once employment is terminated, an H-1B visa holder enters a 60-day grace period during which he or she needs to leave the U.S., seek a change of status or have another employer file an H-1B petition or other immigration petition on their behalf.

An H-1B visa holder is only considered to be maintaining valid H-1B status while working for their H-1B petitioner, so is no longer in valid status as of termination. A USCIS regulation from 2017, however, gives H-1B visa holders a 60-day ‘grace period’ after termination. During that time, the H-1B worker is not in valid H-1B status but can find another H-1B petitioner and transfer their H-1B status (or can find another status to change to). Since the 2017 regulations, as long as a new employer files a new H-1B petition for the visa holder within 60 days of the prior petitioner’s termination, USCIS will routinely grant the change of employer petition even though there was a gap in the employee’s H-1B status.

Layoffs can also affect the Green Card process. Department of Labor regulations restrict employers from filing applications for permanent labor certification on behalf of any position where there was a layoff of similar U.S. workers within the previous 180 days, preventing some filings from occurring in this environment. A layoff can bring additional difficulties for individuals waiting for their employment-based green card. Once someone gets to the second stage of the green card process—the I-140 immigrant petition—and that petition has been approved for at least six months, they retain their priority date, which is their place in line for the green card backlog, even if they lose their job. This is very important for nationals of India and China. . However, they often will need to repeat the first couple of steps of the process (PERM, I-140) with a new employer to show an unavailability of qualified US workers for the job.

Once the last stage of the green card process, called adjustment of status, has been pending for six months, the employees have more flexibility to change to a different employer without needing to start the process over again from the beginning. In that instance, finding a new employer quickly becomes important for the green card process because they need to be able to show they have a job offer to finish the green card process. For H-1B visa holders who were able to file applications for adjustment of status before a layoff, their application for permanent residence will remain pending and can be approved if the H-1B visa holder obtains another job in the “same or a similar” occupation.