GET THE EBOOK FOR STARTUPS!

 

Reports of tech company layoffs fill the news: Twitter, Stripe, Lyft, and now Meta.

 

If you’re a foreign national employee who has been laid off, unfortunately, in addition to navigating other tough aspects of this, you will also be considering the significant immigration impact.

 

Stripe’s CEO Patrick Collison acknowledged this in his email to employees:

Immigration support. We know that this situation is particularly tough if you’re a visa holder. We have extensive dedicated support lined up for those of you here on visas (you’ll receive an email setting up a consultation within a few hours), and we’ll be supporting transitions to non-employment visas wherever we can.”

 

Meta’s CEO Mark Zuckerberg also acknowledged this:

I know this is especially difficult if you’re here on a visa. There’s a notice period before termination and some visa grace periods, which means everyone will have time to make plans and work through their immigration status. We have dedicated immigration specialists to help guide you based on what you and your family need.

 

However, even if you’re a foreign national employee whose job remains intact, a layoff at your employer may also impact your immigration matters especially if you’re in the middle of a PERM green card.

 

We hope this article provides some helpful information to all but please keep in mind that this should not be relied on as legal advice and you should always contact an immigration lawyer for specific legal advice, should you need it.

 

Please see below for how a layoff may impact the various visa holders.

 

What is the 60 day grace period?

Before considering the nuances of each visa type, we should discuss the “60 day” grace period.

 

The regulations allow certain foreign national employees (E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN visa holders) a grace period at the end of their employment. The regulations can be found here at CFR §214.1(l)(2).

 

It’s important to note that the grace period is 60 days at the end of employment OR until the end of the authorized validity period on your petition approval, whichever is shorter. Thus, if your I-797 petition approval ends before 60 days, your grace period is shortened to the validity period listed on the I-797 approval notice/I-94.

 

The 60 day grace period is a relatively recent addition to immigration. Prior to the January 2017 regulations, there was no grace period at all.

 

The grace period can be used to allow the individual to find a new employer, file a change of status to another visa type, or prepare to depart the U.S. The grace period allows the individual to remain in the U.S. without working, without being considered out of status.

 

When does the 60 day grace period start?

Like lots of things in immigration, it may not always be clear when the 60 day grace period starts.

 

If someone is terminated and pay stops immediately, then it’s clear that the 60 day grace period starts on termination.

 

But what if someone is terminated and is no longer working but is getting full salary for the next 30 days or 60 days? In this scenario, the safest course of action is to assume that the 60 day grace period started on the date of the termination/last day of productive work and not when the employee gets their last paycheck.

 

It’s important to know when the 60 day grace period starts because you can then calculate when it ends. You need to make sure that you do one of the following within the grace period:

  1. File a change of status
  2. File a change of employer/transfer case
  3. Depart the U.S.

 

Layoffs for H-1B Visa Holders

The good thing about H-1B visas is that they are transferrable to a new employer, assuming the new case/role meets the H-1B requirements.

 

From a timing point of view, if you’re looking to file an H-1B change of employer case, ideally you would have a signed offer by Day 35 – 40. It takes a few weeks to prepare an H-1B transfer so you need to make sure that the new employer has time to prepare and file it before the grace period ends. If that happens, then “H-1B portability” should allow you to start working for the new employer on receipt of the H-1B transfer.

 

If you’ve been laid off and you’re in H-1B status, your employer must also offer to pay for a return flight/transportation home/last country of residence if you’re terminated prior to the end of your authorized stay. This typically does not include transport for your family or household belongings, if any.

 

Layoffs for O-1 Visa Holders

O-1 visas can also be transferred from one employer to another. Assuming your O-1 is a traditional employer/employee type O-1 (and not one with more flexibility like an agent O-1), the new employer will have to file a change of employer O-1 case.

 

From a timing point of view, if you’re in O-1 status and want to file a change of employer, you should try working on this as soon as possible because O-1s can take a lot of time to prepare.

 

Also, unlike H-1B visa holders, you cannot start working for the new employer until the O-1 change of employer case has been approved, not just filed.

 

Finally, the offer of a return flight home also applies to O-1 visa holders who were terminated prior to the end date on their petition.

 

L-1A or L-1B Visa Holders

The L-1A/B visa is an intra-company transfer visa. One of the requirements is that you worked for a subsidiary/parent/affiliate abroad for at least a year within the 3 years before being transferred into the U.S. This makes L-1A/L-1B visas very hard to “transfer” over to a new employer because it’s unlikely that you would meet the requirements of working abroad for a year with another employer.

 

If you’re an L-1A or L-1B visa holder who has been laid off, you really need to talk to an experienced immigration attorney to see what options, if any, you may have.

 

There’s a chance that you might qualify for an O-1 visa if we can show that you are at the top of your field. If you held leading managerial/executive roles in a top tech company, you may be able to meet the requirements for an O-1 visa.

 

Change of Status to B Visitor Status

If you can’t find a new employer within the grace period and want additional time to remain in the U.S., you may want to file a change of status to visitor. This can potentially give you up to 6 months to remain here.

 

B-1 status is visitor for business, and B-2 is visitor for pleasure. However, a pending change to visitor, or even an approved B-1/B-2 visitor status does not allow you to work in the U.S. and you should be able to show that you can financially support yourself for the duration of the time requested (up to 6 months).

 

Change of Status to F-1 Student Status

If you want to study in the U.S., you could look at filing a change of status to F-1, but note that these are taking quite some time to get approved, so this would need to be discussed with an immigration attorney and the potential school to see if it would work for you.

 

Change to a Dependent Visa if Spouse is on Visa

If you’re married and your spouse has their own independent status, you may want to consider changing to a corresponding dependent status of your spouse’s visa type, especially if their status allows for spouses to work independently.

 

Depending on specifics, you may want to either file a change of status in the U.S. or you could decide to apply directly at an Embassy or Consulate, which may be a lot faster.

 

Marriage-Based Green Card if Engaged/Married to a U.S. Citizen/Green Card Holders

If you’re married, or soon-to-be married, to a U.S. citizen or green card holder, you may wish to look into filing a marriage-based green card. It will take some time to get a work permit associated with a pending marriage-based green card, but a pending case may allow you to remain here in the U.S. – the specifics would need to be discussed with an attorney.

Startup Options for Laid Off Employees

If you’ve been laid off, you may be considering either creating your own startup or joining an existing one as a co-founder/early employee.

 

For would-be founders, some early activities relating to setting up a startup could be considered passive, and some are preliminary and, therefore, should not be considered “work” for immigration purposes. This means that you could likely do some of these during a grace period or potentially while here as a visitor.

 

Permitted “non-work” activities may include things like:

  • Incorporating your startup
  • Signing a lease for office space
  • Meeting with, and presenting to, potential investors like venture capitalists and angel investors
  • Negotiating contracts with vendors, customers, and investors
  • Participating in conferences or seminars
  • Engaging in discussions or conducting independent research such as performing customer discovery
  • Engaging in competitive analysis
  • Building a test model to explore the technical feasibility of a product or service
  • Drafting potential marketing materials

 

Immigrant startup founders should be permitted to perform the above tasks without it being considered “work” that requires employment authorization.

 

However, participating in the day-to-day activities of the business – those that are more “active” than “passive” – would be considered work for immigration purposes and you would need to make sure you have work authorization. Work authorization could be an H-1B visa (yes, it is potentially possible for your startup to sponsor you for an H-1B) or maybe even an O-1 visa.

 

Some of these tasks include:

  • Acting like a CEO/investor/manager for your startup
  • Managing operations
  • Engaging fully in the day-to-day business activities
  • Hiring, managing, and directing employees or contractors

 

It is not always clear when something stops becoming preliminary/passive and starts to become “work”. I strongly recommend that you consult with an experienced startup immigration attorney for advice so you’re aware of some of these parameters. You will also need to plan out future immigration options so the sooner you can get some specific advice, the better.

 

Green Card Process for Remaining Employees

For those foreign national workers who remain employed, a layoff may impact their PERM green card process. An employer may not be able to file a PERM labor certification unless it has notified any laid-off U.S. workers and considered whether they meet the minimum qualifications for the PERM position. The PERM labor cert can then only be filed if qualified U.S. workers are not interested in the role.

 

Note that a foreign national employee cannot be involved in the recruitment/applicant review process for a PERM green card so unfortunately you really cannot know full details related to this process. However, if you are in the middle of a PERM process and there have been company layoff, it might make sense to talk your employer.

 

Conclusion

We can’t imagine how tough it is to be a foreign national employee impacted by layoffs.

 

We hope this article provides some helpful information to all but please keep in mind that this should not be relied on as legal advice and you should always contact an immigration lawyer for specific legal advice, should you need it.

 

Should you wish to book a consultation with one of our attorneys, you can do so here.

 

If you’re interested in learning more about immigration options for startups, you can sign up for our forthcoming free eBook here.

 

 

 

 

 

Book A Consultation

  • This field is for validation purposes and should be left unchanged.

Subscribe to Newsletter