FAQ » RIF - For Employees

How long can I remain in the U.S. if I am affected by a Reduction in Force (RIF)?

 

 

A: Currently, there is no grace period and once your employment ends, an H-1B transfer must be quickly filed by a new employer or you must either file an application to change to another non-immigrant status or leave the U.S.

What if I get another H-1B job offer?

 

 

A: The new employer should file an H-1B transfer petition on your behalf immediately. A short period of unemployment will seldom be a problem if the pay-stub that is submitted with the petition is less than one pay-cycle old.  If your last pay-stub is more than one pay-cycle old, USCIS will assume you were not in valid H-1B status when the H-1B transfer was filed.  If so, USCIS will approve the H-1B (assuming it is otherwise approvable) but deny the extension of stay request, in which case you will be required to depart the U.S. after the new petition has been approved, obtain a new H-1B visa at an American Consulate, and return to the U.S. before resuming employment with the new employer.

Am I still "portable" as an H-1B worker after being laid off?

 

 

A: H-1B portability refers to the ability for an H-1B beneficiary to begin working for a new employer/petitioner once the H1B transfer has been filed (i.e., before approval).  USCIS previously 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."

Can I change my status to another nonimmigrant category?

 

 

A: Yes, you may submit an application for change of status to another non-immigrant category (e.g., B-2 visitor or F-1 student).

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?

 

 

A: 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.
What if my employer has filed and obtained an approved labor certification and I am affected by a RIF?

 

 

A: Unfortunately, the approved Labor Certification is employer-specific and you won't benefit from it if you will no longer be employed by the company.

What if my employer has filed and obtained approval of the I-140 Petition when I am laid off?

 

 

A: 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.

What if I had filed a pending I-485 Adjustment of Status application before I am laid off?

 

 

A: 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.

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?

 

 

A: Yes, the EAD allows for unrestricted employment authorization.

Can I extend my EAD after I am laid off if my I-485 petition is pending?

 

 

A: Yes. As long as your I-485 is pending, you may continue to request extensions of your EAD.

Can I continue to travel internationally with my H or L visa after I am laid off?

 

 

A: No. Once you are no longer employed, you will not be able to re-enter the U.S. with your H or L visa. However, if you were in H-1B status and a new employer has filed an H-1B petition on your behalf, you may re-enter the U.S. with the pending H-1B’s receipt notice, your previous H-1B approval, and your valid passport and visa. If you are in the I-485 process and have a valid advance parole, you may return regardless of H-1B status.