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USCIS posts guidance on ‘X’ for the benefit of laid off H-1B workers – shows how they can remain in US beyond the 60 day grace period – Times of India

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MUMBAI: Just days ago, Tesla employees who were laid-off and were on H-1B visas took to social media frantically searching for a job. After all, H-1B workers get a grace period of only 60 days within which to find another job in the US (under an H-1B transfer process, where the new employer does the sponsorship and relevant paperwork).
Today, US Citizenship and Immigration Services (USCIS) posted on ‘X’ formerly twitter stating: When H-1B or other noncitizen workers are laid off, they may not be aware of their options and may wrongly assume that they have no choice but to leave the country within 60 days.
While the guidance is not new, USCIS has made it more convenient for laid-off workers to get information at a glance, as it has collated together the various provisions. This guidance note is available on its site.
TOI had earlier covered the other options available – such as transition to a visitor visa or a student visa. In its edition of November 5, 2022, Robert Webber, a US immigration attorney was quoted as saying: “If you do not have an H-1B transfer job offer lined up, after about 45-days, you could start the preparation for filing an I-539 application to change status from H-1B to B-2 to ‘buy time’ to transition out of the US. You will not have authorization to work on this visa, so this option is based on the assumption that you can support yourself during this period on your savings.” The B-2 visa is a visitor visa and the maximum stay is six months, but a few months extension is possible
Read also: https://timesofindia.indiatimes.com/india/it-is-a-double-whammy-for-laid-off-h-1b-employees-as-the-clock-is-ticking/articleshow/95325843.cms
Later when USCIS broadened the parameters for backlogged skilled workers with approved I-140 petitions to obtain temporary work authorisation (employment authorisation document-EAD) for up to one year, under ‘compelling circumstances’, TOI in its edition of November 5, 2022, analysed how this could also help laid-off H-1B workers.
While the compelling-circumstances-EAD has been in existence since 2017, very few could avail of it, as the standards were very strict. Cyrus Mehta, New-York based attorney had then told TOI “On June 14, 2023, USCIS relaxed the standard by allowing persons who have lived in the US with family for a significant amount of time to demonstrate that due to job loss they would be forced to sell their home, pull their children out of school, lose their health insurance and forced to relocate to their home country”.
Read also: https://timesofindia.indiatimes.com/nri/us-canada-news/laid-off-workers-in-us-could-benefit-from-broadening-of-compelling-circumstances-norms/articleshow/101068686.cms

USCIS in its guidance points out:

When a non-immigrant worker’s (ie: H-1B employee’s ) employment ends, either voluntarily or involuntarily, they typically may take one of the following actions, if eligible, to remain in a period of authorized stay in the US:
·File an application for a change of non-immigrant status;
·File an application for adjustment of status;
·File an application for a “compelling circumstances” employment authorization document; or
·Be the beneficiary of a nonfrivolous petition to change employer.
If they take one of the above actions during their 60 day grace period, their period of authorised stay can exceed 60 days. If the laid-off worker takes no action within the grace period, they and their dependents may then need to depart the US within 60 days, or when their authorized validity period ends, whichever is shorter.

File an application for change of status:

If the laid-off worker has a spouse who is holding a valid H-1B visa, he or she can become the dependent of this spouse (in other words obtain an H-4 visa. This is also possible if the spouse is holding an L visa (granted to those on an intra company transfer), the laid off H-1B worker can be the dependent spouse of an L visa holder. Some spouses of H-1B workers (such as those on track for a green card) can obtain work authorization. It is also possible for a spouse of an L visa holder to get work authorization. Or a laid off H-1B worker can transit to a student visa (F-1) or a visitor visa (B-1). USCIS cautions that non-immigrant visitors are specifically precluded from ‘performing skilled or unskilled labour’ in the US. Certain F-1 students, by regulation, may engage in limited employment.

File an application for adjustment of status:

USCIS states that some workers may be eligible to file a self-petitioned immigrant visa application concurrently with an adjustment of status application. Examples of immigrant classifications that are eligible for self-petitioning include EB-1 (for those who can prove extraordinary ability) and EB-5 which is the investment linked green card program. Workers with a pending adjustment application are generally eligible to remain in the US in a period of authorised stay and can obtain an employment authorisation. Workers with a pending adjustment application are generally eligible to remain in the US in a period of authorised stay and obtain an EAD, explains USCIS.

File an application for a ‘compelling circumstances’ employment authorization document:

Workers who are the beneficiary of an approved employment-based immigrant visa petition (Form I-140) – this is the application for permanent residence – aka green card; may be eligible for a compelling circumstances EAD for up to one year if they: Do not have an immigrant visa available to them based on the Department of State’s Visa Bulletin; and Face compelling circumstances.
A compelling circumstance EAD is a discretionary stopgap measure intended to assist certain individuals on the path to lawful permanent resident status by preventing the need to abruptly leave the US. Workers who begin employment on compelling circumstances EAD will no longer be maintaining non-immigrant status but generally will be in a period of authorized stay and will not accrue unlawful presence in the US while the EAD is valid, explains USCIS.


Be the beneficiary of a nonfrivolous petition to change employer: USCIS explains,

H-1B portability allows eligible H-1B non-immigrants to change employers, or ‘port’, to a new H-1B employer and begin working for the new employer as soon as a nonfrivolous H-1B petition with a request to amend or extend H-1B status is properly filed with USCIS, without waiting for the new petition to be approved.
The post on ‘X’ by USCIS has elicited a variety of responses, with some saying that the 60-day grace period is not adequate and must be of a longer duration.

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