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FAQs: For Employees
I. Nonimmigrant Issues
II. Immigrant Issues
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I. Nonimmigrant Issues
How long can I remain in the U.S. if I am affected by a Reduction in Force (RIF)?
Currently, there is no grace period and once your employment ends, you are required to either return home or change your status to another non-immigrant status to enable you to remain in the U.S. However, the USCIS can exercise its discretion and approve an untimely-filed request for extension or change of status if the delay was due to "extraordinary circumstances." Although a RIF is generally not considered an "extraordinary circumstance," the USCIS has been exercising its discretion favorably in granting extension of stay requests where the employee has been unemployed for up to 30 days and in some cases, up to 60 days. It should be emphasized that there is no law directly on point to provide reliable guidance on this issue and the "10 day rule" one often hears about does not apply in a RIF situation. It should be further emphasized that the 30-day and 60-day time frame referred to here is not law nor is it an USCIS policy. It is merely based on various practicing attorneys' observations of how the USCIS has adjudicated like cases recently. The good news is that the USCIS is currently considering regulations that would allow a 60-day grace period.
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What if I get another H-1B job offer?
The new employer should process an H-1B petition on your behalf immediately. As indicated above, there is no grace period. However, the extension is discretionary and will be handled on a case-by-case basis. If the USCIS denies the extension of stay request on your behalf, you may be required to depart the U.S., obtain a new H-1B visa at an American Consulate after the new petition has been approved, and return to the U.S. in H-1B status in order to commence employment with the new employer.
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Am I still "portable" as an H-1B worker after being laid off?
This issue has not been resolved by the USCIS . However, USCIS issued a memorandum, which suggested that a laid-off H-1B employer is portable. Specifically, it stated "Congress does not appear to have limited portability benefits only to those who are working lawfully in H-1B status at the time a new employer files a new H-1B petition on their behalf." Also, as mentioned above, the USCIS is considering a 60-day grace period which would allow an H-1B worker to maintain valid status and invoke portability. Until this issue is definitively resolved, however, USCIS will adjudicate each of such case on a case-by-case basis.
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Can I change my status to another nonimmigrant category?
Yes, you may submit an application for change of status to another non-immigrant category (e.g., B-2 visitor or F-1 student).
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If my foreign student advisor recommended that I be granted optional practical training work authorization and I have an EAD issued by the USCIS , may I change my status back to F-1 even if it is currently H-1B?
You may request reinstatement by the USCIS , or submit an application for change of status back to F-1, but the USCIS processing time is slow and you would not be able to re-commence employment on the basis of practical training until the change of status is granted. You could, however, exit the U.S. and return in F-1 status. To do this, you will need the following:
- Valid passport with valid F-1 visa;
- I-20 endorsed within the last 6 months by the Foreign Student Advisor;
- EAD Card; and
- Letter from employer regarding practical training employment.
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II. Immigrant Issues
What if my employer has filed and obtained an approved labor certification and I am affected by a RIF?
Unfortunately, the approved Labor Certification belongs to the employer and you won't benefit from it if your employment ends. Your employer can use it to file an I-140 Immigrant Petition for someone else who qualifies for the same position.
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What if my employer has filed and obtained approval of the I-140 Petition when I am laid off?
If the I-140 has been approved, you can retain your priority date for a future employment-based petition if your employer does not withdraw the I-140. If the employer does withdraw the I-140, the employer can substitute in another beneficiary for the labor certificate.
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What if I had filed a pending I-485 Adjustment of Status application before I am laid off?
If you are impacted by a RIF, after filing the I-485, the USCIS can deny the adjustment of status request as your intent is not to work for the sponsoring employer and the employer has no intentions of employing you. However, pursuant to the American Competitiveness Act in the 21st Century Act ("AC-21"), which became law on October 17, 2000, if 180 days has elapsed since the filing of an Adjustment of Status application, you are allowed to switch employers so long as you remain in the same or similar occupation.
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If I have obtained an EAD pursuant to an I-485 Adjustment of Status application and I am laid off, can I work for another employer?
Yes, the EAD allows for unrestricted employment authorization.
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Can I extend my EAD after I am laid off if my I-485 petition is pending?
Yes. As long as your I-485 is pending, you may continue to request extensions of your EAD.
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Can I continue to travel internationally with my H or L visa after I am laid off?
No. Since you are no longer employed with the sponsoring employer, you will not be able to travel internationally and re-enter the U.S. on the H or L visa. You can, however, travel on special advance parole. Alternatively, if you find a new job and the new employer files an H petition on your behalf and you provide USCIS at the port of entry a copy of the receipt notice, you can enter the U.S. in H status again.
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