Visa Options if You Lose Your Job in the US
Being granted permission to work in the United States represents the start of an exciting new chapter. But in most cases, this permission is not only temporary, it’s also conditional on you keeping your job. This means that in the event a visa-holder loses their job, the immigration implications can be potentially life-changing.
In this guide, we explain the impact of the loss of employment on a visa worker’s immigration status, including the 60-day grace period, whether you can transfer to a new employer under your visa, and the circumstances when you will have to leave the US.
What happens to your visa if you lose your US job?
If you are currently working in the United States under a nonimmigrant work visa, the validity of that visa will usually be dependent on you remaining employed by the same employer and continuing to work in the same role for which permission was granted.
If your employment is terminated — regardless of whether you are laid off, dismissed, made redundant or resign — this is most likely to impact the validity of your visa which, in turn, will affect your permission to remain in the US. As such, you may need to consider alternative visa options as a matter of urgency or you may have to leave the US.
Guidance as to the various options for nonimmigrant workers following termination of employment, either on a voluntary or involuntary basis, has recently been published on the US Citizenship and Immigration Services (USCIS) website. However, by seeking expert advice from an immigration attorney, this is likely to maximise your chances of overcoming this hurdle and ensuring continuation of lawful nonimmigrant status as soon as possible.
How long will your visa last if you lose your job?
For most overseas workers who lose their jobs, they will not immediately be at risk of having to leave the US. This is because there is a 60-day discretionary grace period for nonimmigrant workers following cessation of employment in a number of different classifications.
Specifically, under 8 CFR 214.1(l)(2) of the Code of Federal Regulations, nonimmigrant workers in E1, E2, E3, H1B, H1B1, L1, O1 or TN classifications — together with any dependants on derivative visas under the same classification — will be considered as having maintained their status following cessation of employment for up to 60 calendar days, or until the end of the visa’s authorized validity period, whichever is sooner.
This essentially means that you will not be treated as having failed to maintain your nonimmigrant status solely on the basis of losing your job, even if your status is dependent on that employment continuing, but only for 60 days at most. The Department of Homeland Security (DHS) also has the discretion to eliminate or shorten this grace period.
Importantly, unless otherwise authorized under 8 CFR 274a.12, you may not work in another job role during this grace period, although you can take steps to explore all alternative visa options and apply to either extend your stay under 8 CFR 214.1(c)(4) or change your nonimmigrant status under 8 CFR 248.1, if eligible. Put simply, you will be able to maintain your nonimmigrant status if a new employer files a petition on time and on your behalf with an extension of stay request. Alternatively, you may be able to stay if you file an application to change to a new nonimmigrant status. In some cases, you may even be eligible to apply for a green card, provided you meet the eligibility criteria.
Can you stay on the same visa if you lose your job?
If you lose your job and you are in the United States under a nonimmigrant work visa, that visa will soon expire, as detailed above. However, you may be able to maintain the same nonimmigrant status, provided a new employer files a petition on your behalf with an extension of stay request. This is known as portability to a new employer, where the portability rules permit workers in H1B status to begin working for a new employer as soon as that employer properly files a new H1B petition with USCIS, without waiting for that petition to be approved.
This means that if you are able to secure a new job offer in a speciality occupation, you can commence work in that role once the employer files a Form I-129 petition on your behalf, or as of the specified start date on that petition, whichever is the later. However, to be eligible for portability, you must not have been employed in the US without authorization from the time of your last admission, and the new employer must properly file a new and non-frivolous petition prior to expiry of your initial H1B period of authorized stay. As such, if you are laid off, fired, quit or otherwise cease to work for your previous employer, you will only usually have up to 60 days or until expiry of your authorized validity period, whichever is the shorter, to find new employment as an H1B nonimmigrant worker.
However, having found a new job, provided you are still eligible for H1B portability, your new employment will be authorized until USCIS has made a decision on Form I-129. If the new I-129 petition is approved by USCIS, you can continue working for your new employer for the length of time indicated on the petition approval. If, on the other hand, the new petition is denied, your authorization to work based on portability will cease at that stage.
It is worth noting that if you are moving from H1B cap-exempt to cap-subject employment, your new employer’s H1B petition will be subject to the annual numerical limitation on the petitions to be adjudicated by USCIS. If subject to the yearly cap, your new employer must first submit an electronic registration, typically in early March, where registrations are then selected by a random lottery process. Only where your registration is selected can the new employer file a petition on your behalf with a start date of no earlier than 1 October, where you can only begin working under the new cap-subject petition after a Form I-129 petition has been properly filed or as of the specified start date on that petition, if later.
Can you transfer to a different visa if you lose your job?
In addition to the H1B portability provisions, you may also be able to use your 60-day discretionary grace period to seek new employer-sponsored nonimmigrant status under a different classification. For example, if you are currently an L1 worker, depending on your nationality, you may be eligible for new employment under the TN, E3 or H1B1 classifications, where the timely filing of an application to change status will prevent the accrual of unlawful presence until that application is decided. However, such a filing alone will not confer employment authorization in the new position while the application is pending, and will not extend employment authorization if the original classification is no longer valid, although some petitions may be eligible for premium processing for a fee.
Alternatively, you could use the grace period to apply to change your nonimmigrant status to become the dependent of a spouse, where applicable. For example, you may be able to change to either H4 or L2 classification as the spouse of an H1B or L1 worker respectively. As the spouse of an L1 nonimmigrant, you will be eligible for employment authorization incident to status. You can also apply for employment authorization as the spouse of an H1B worker, provided your husband or wife has an approved Form I-140 immigrant petition and certain other requirements are met. Equally, you may be authorized to work if you apply for derivative status as the spouse of an E1 treaty trader or an E2 treaty investor.
If these suggestions are not open to you, there are several other available visa options for remaining in a period of authorized stay following termination of your employment, although not all of these options will provide you with employment authorization. For example, you may be able to stay in the US if you file an application to change to a B1 or B2 visitor visa prior to expiry of the 60-day grace period, although B1 and B2 nonimmigrant visitors are precluded from performing skilled or unskilled labour in the United States. Another possible nonimmigrant option includes F1 status as a full-time student, where certain F1 students may engage in limited employment around their studies.
However, in all scenarios, the timely filing of an application to change status will stop you from being in the US on an unlawful basis until the application is adjudicated. For example, if you file an application to change status before the end of your 60-day grace period, you will not accrue unlawful presence while that application remains pending, even after the grace period has elapsed. If the application is ultimately approved, your status will be changed and you will be considered to have been in a period of authorized presence the entire time that your application was pending. If, on the other hand, your application is denied, then you will start to accrue unlawful presence the day after the denial decision.
Can you still get a green card if you lose your job?
If you are a nonimmigrant worker who has just lost their job, but have already filed Form I-485 (Application to Adjust Status), with an underlying valid immigrant visa petition using Form I-140 (Immigrant Petition for Alien Worker) — and your Form I-485 has been pending for at least 180 days — you can transfer the valid petition to a new offer of employment within the same or similar occupational classification with a new employer. This is because section 204(j) of the Immigration and Nationality Act (INA) allows applicants experiencing delays in the employment-based adjustment of status process some flexibility to change employer. Referred to as ‘porting’, the INA 204(j) provision will allow you to complete your application for a green card, provided you can secure a qualifying new job offer.
Further, an applicant who successfully ports their petition on which the adjustment application is based to a new job role will retain the priority date of the underlying petition.
Alternatively, if you have not yet petitioned for an immigrant visa, commonly referred to as a green card, you may even be eligible to concurrently file a self-petitioned immigrant visa petition with an adjustment of status application. Examples of immigrant classifications eligible for self-petitioning include EB1A Extraordinary Ability, EB2 National Interest Waiver or EB5 Immigrant Investors. Importantly, workers with a pending adjustment application are generally eligible to remain in the US and obtain an Employment Authorization Document (EAD) to enable them to work in the interim.
What will happen if you lose your job and decide to return home?
If you lose your job and all options for nonimmigrant workers following termination of employment have been exhausted or, alternatively, you simply decide it is time to go home, you can choose to depart the US. As an H1B and O worker who choses to leave after involuntary cessation of employment, under 8 CFR 214.2(h)(4)(iii)(E) and 8 CFR 214.2(o)(16), the reasonable costs of transportation to your last place of foreign residence must be borne by your H1B employer, or by the O employer and O petitioner, as applicable.
Once you are overseas again, as an H1B visa-holder, you may seek employment in the United States and readmission for any remaining period of your H1B status. If you are instead seeking another visa classification for which you may be eligible, you can also complete the application or petition process outside the US before seeking readmission.
However, it is important to remember that if you have exhausted all visa options and you are unable to file a change of status application while in the United States prior to expiry of your authorized period of stay, or find a new employer who is able to timely file a change of employer petition on your behalf, you may be required to leave the country at the end of the 60-day grace period. By overstaying, you are at serious risk of being deported from the country. You may also be barred from returning to the US in the future.
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NNU Immigration are specialist US immigration attorneys. If you’re looking to make an application to retain your lawful immigration status, speak to our experts.
US visa options after loss of employment FAQs
Do I have to leave the US if I lose my job?
If you lose your job as an overseas worker in the United States, and you were admitted to the US under a nonimmigrant work visa, you may be able to stay in the US by securing similar alternative employment.
Is my visa still valid if I’m laid off?
If laid off whilst employed under a nonimmigrant work visa in the US, you will usually be given up to 60 days to apply for a different type of visa or the same visa type but with a different employer.
How long can I stay in the US without a job?
The length of time that you will lawfully be allowed to stay in the United States without a job, where you were initially admitted to the US under a nonimmigrant work visa, will usually be a maximum of 60 days.
This article does not constitute direct legal advice and is for informational purposes only.
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law (AILA) and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with both US and UK operations to meet their workforce needs through corporate immigration.
Nita successfully acts for corporations and professionals, entrepreneurs, artists, actors, and athletes from across the globe, providing expert guidance on all aspects of US visa and nationality applications, and talent mobility to the USA.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
