Changing Your Status to H1B Alternatives
You also have the option of changing your visa status from H-1B to alternative visas within your 60-day grace period. Your H1B Alternatives include a temporary work visa, student visa, exchange visitor visa, dependent visa, or visitor visa.
Temporary Work Visas
- O-1 for persons with extraordinary ability. You must have a sponsoring employer and internationally or nationally recognized awards and achievements.
- E-1 for treaty traders. You must be engaged in substantial and principal trade with the US and be a citizen of a treaty country. Treaty countries such as Singapore, Chile, and the United Kingdom maintain a treaty of commerce and navigation with the USA.
- E-2 for treaty investors. You must establish a business in the United States by investing substantial capital and be a treaty country national.
- TN for Mexican and Canadian citizens. Your occupation must be on the North American Free Trade Agreement (NAFTA) list of professions.
These visas are also nonimmigrant, the same as the H-1B Visa, which only allows for a definite period of stay in the United States. You will eventually need to apply for an immigrant visa if you want to work and live permanently in the United States.
- F-1 for international academic students. You must be studying at an approved institution such as a university, seminary, college, or conservatory. You can work on and off campus for a maximum of 20 hours per week if school is in session as an F1 student. You will also need to obtain work authorization before you can work off campus as an F-1 Visa student.
- M-1 for vocational students. You must be studying non-academic, vocational, or technical courses in the USA. You will also need work authorization before working as an M1 student and you can only work for 1 month for every 4 months of study at a job that is related to your studies.
Working freedom is restricted for foreign students in the USA since the main purpose of the student visa is to allow you to engage in your studies. You will need to apply for a work visa or an immigrant visa if you want to gain broader working rights in the USA.
Exchange Visitor Visa
The J-1 Visa is for exchange visitors and students participating in programs sponsored by educational or nonprofit organizations that have been authorized by the U.S. Department of State (DOS). The principal restriction of the J 1 Visa is that absent a waiver, you must leave the United States and stay in your home country for at least 2 years after finishing your J program before you can reapply for a US Visa.
You can change status as a dependent if your spouse holds an H-1B Visa or L-1 Visa for intracompany transferees. H-4 and L-2 dependents are able to work in the USA without restrictions as long as work authorization is obtained. However, should your spouse lose their visa status, you will also lose your US work authorization.
The B1/B2 Visa are for business visitors and tourists which allows for a maximum stay of 6 months in the United States. Some foreign workers opt to extend their stay in the US after H-1B Unemployment to wrap up their affairs or continue searching for jobs. Interviewing for new positions and looking for work are both permitted activities under the B-1/B-2 Visa, according to USCIS. However, you cannot work in the U.S. while you hold a Visitor Visa status.
The accrual of unlawful presence shall be tolled or stopped until a non-frivolous application to change status to any of these visas is timely filed. You will not accrue unlawful presence while the application is ongoing even after the 60-day grace period has passed if you file a non-frivolous application to change status before the end of your H 1B grace period. Once your application is approved, your status will be changed and the entire time your was pending, you are assumed to have been in a period of authorized presence. The day following the decision to deny the application, you begin to accrue unlawful presence in the US.
Adjusting Your Status
Adjusting your status with an I-485 petition enables you to obtain permanent residence in the United States which is more advantageous than nonimmigrant visas if you want to work indefinitely in the United States. You can adjust status in the USA through family-based sponsorship or investment immigration to maintain lawful status in the US after H-1B Unemployment. Getting a Green Card for permanent residence enables you to work for any employer and remain in the USA regardless of your employment status.
Family-based Green Card
Family-sponsored Immigrant Visas are divided into different categories depending on your relationship with the sponsoring family member who is either a Lawful Permanent Resident (LPR) or a U.S. citizen. There must be a readily available immigrant visa for you so you can file your I-485 petition. Immediate family members of US citizens, such as spouses, children, and parents, always have immigrant visas available to them and are able to adjust status at any time.
Investment Green Card
The EB-5 Visa is an employment-based Green Card that does not rely on sponsorship for eligibility. The main requirement for an EB5 Visa is a minimum investment in a U.S. enterprise that leads to at least 10 full-time jobs for American citizens. You, your spouse, and unmarried children under 21 are granted an initial 2-year Conditional Green Card with an approved US EB 5 Visa. After you have satisfied the investment and job creation requirements of the EB-5 Program, you and your family then gain Lawful Permanent Resident (LPR) status so you can live, work, and study permanently in the USA. We have assisted numerous foreign investors in getting a US Green Card faster with an EB5 Investor Visa.
While waiting for your adjustment of status approval for a family-based Green Card or an EB 5 Green Card, you can apply for an Employment Authorization Document (EAD) to continue working in the USA, as well as a Travel Permit so you can reenter the USA while your petition is pending.
Applying for Employment Authorization Under Compelling Circumstances
Beneficiaries of Form I-140 are eligible for a compelling circumstances Employment Authorization Document (EAD). A compelling circumstances EAD is a discretionary interim measure designed to aid some people in obtaining LPR status by avoiding the need for them to depart the US suddenly. You will no longer be preserving your H-1B Visa status but working under compelling circumstances EAD will normally put you in a period of authorized stay. You will not accrue unlawful presence in the United States while your EAD is in effect.
You are eligible for a compelling circumstances EAD for up to 1 year if you meet the following.
- Are under compelling circumstances.
- Do not have a readily available immigrant visa based on the Department of State (DOS) Visa Bulletin.
What Happens if I Fail to Find a Job Within the H1B Grace Period?
In case you are unable to secure a job, change your visa status, or adjust your status within the H-1B 60-day grace period, you have the option to return to your home country. Should you choose to leave the United States after losing your job on H1B, your sponsoring employer is obligated to shoulder the reasonable cost of your transportation back home per 8 CFR 214.2(h)(4)(iii)(E) and 8 CFR 214.2(o)(16). Transportation costs to your home country for your H4 dependents, however, are not covered by your US employer.
Once you are back in your home country, you can apply for jobs in the US and be readmitted for the remaining validity of your H 1B Visa. You can also finish the application or petition process for another U.S. Visa classification for which you might be qualified in your home country.
The important thing is that you don’t accrue days of unlawful presence in the USA, so if you have exhausted all your options for remaining in the United States, you need to depart by the end of your H-1B grace period. Incurring unlawful presence in the U.S. for more than 180 days bars you from reentering the country for 3 years while unlawful presence for 1 year or more bars you from reentering the US for 10 years.
When Can You Start Working for Your New Employer After H1B Unemployment?
You can start your job with your new employer once your H1B petition has been filed with USCIS. You don’t need to wait for the petition to be approved before you start working but it’s best to have your Form I-797 (Notice of Receipt) first to prove that you have a pending petition before commencing work. Remember that a denial of your H-1B Visa petition means that you need to end your employment and cause you to start incurring days of unlawful presence.
Is There Expedite Processing for Maintaining My Visa Status After H1B Unemployment?
Yes, certain circumstances, such as requests to change status to a dependent status that includes eligibility for employment authorization, qualify you for expedited processing. For instance, in order to avoid significant financial loss, a change of status application from H-1B to L-2 allows you to request expedite processing. You will need to file the request with USCIS in a timely manner and with the appropriate supporting documentation. USCIS has the sole discretion to adjudicate expedited processing requests depending on your case.
Can You Still Apply for a Green Card After Losing Your Job on H1B?
Yes, if you have an adjustment of status application that has been pending for 180 days or more, and a valid underlying immigrant petition, you remain eligible for a USA Green Card even after losing your job on H-1B Visa. Even without a pending I-485, you can still change from H1B to Green Card through the EB 5 Immigrant Investor Visa Program. Many of the clients we have helped found the EB-5 Visa USA to be more advantageous since the program allows for self-petitioning and concurrent filing. Once the EB5 petition and adjustment of status application are submitted, you can also obtain an EAD and Travel Document to continue working in the USA and reenter the country after traveling overseas.
Can an H1B Attorney Help Me Keep My Visa Status in the US After Unemployment?
Yes, working with an H-1B Visa Attorney is definitely beneficial in helping you navigate the best strategy to maintain lawful status in the USA after an H1B layoff. An H1B Visa Attorney is an immigration lawyer who specializes in all aspects of the H-1B Work Visa. Hiring an experienced H 1B Lawyer ensures that you get the appropriate advice on U.S. immigration and obtain the needed assistance in organizing your paperwork to keep your lawful visa status in the USA.
Can I Use the H1B Grace Period if I Resigned from my Job?
As USCIS does not clearly distinguish between job loss, layoff, resignation, or termination, you can use the H1B 60 day grace period if you quit your current position. Remember, though, that the grace period is there to assist nonimmigrant workers who find themselves in difficult circumstances. As a result, there is a possibility that USCIS will refuse to grant you the grace period if your case is not strong enough. Therefore, it is not a good idea to simply quit your job if there are no reasons to do so. We advise you to discuss matters such as this with your H-1B Lawyer.
Can I Use the H1B Grace Period More Than Once?
You can use the 60-day grace period only once for one employer. Let’s give an illustration to help you understand better. You have a 60-day grace period as an H-1B worker for Employer A. Now, if you quit your job or are laid off but later decide to return to Company A on the same H1B petition after 30 days, you are not eligible for another 60-day grace period. On the other hand, if you switch to Employer B, you will have a fresh H1B petition and validity term, giving you access to an additional 60 days of grace period.
Can My H4 Spouse Work During the H1B Grace Period?
Yes, your spouse on H-4 status and with a valid EAD can continue to work despite your H-1B loss of employment. However, remember that your spouse’s H4 status is dependent on your H1B status which would cease to be valid once you lose your status. Since you have a grace period wherein you can temporarily retain legal status, your H4 spouse can continue working legally within this period. Should you fail to obtain new employment, change status, or adjust your status, any job carried out past the grace period will be regarded as unauthorized employment.
Can I Travel Outside the US During My H1B Grace Period?
Yes, you can travel outside the USA during your H1B grace period, however, if you are unable to secure new employment, change status, or adjust status, you will have difficulty reentering the United States. Staying in the US during your 60 day grace period is recommended especially if you want to continue working and living in the United States. Losing your H1B status overseas will require you to go through consular processing to apply for a new US Visa if you want to reenter the country.
FAQs about Losing Your Job on H1B Visa
Do I Have to Leave the US After Losing My Job on H1B?
Yes, if you’re unable to find a new employer, change your status to another visa, or adjust your status to Green Card within 60 days of losing your H-1B job, you will have to return to your home country. Your U.S. sponsoring employer will have to pay for your flight back home after H1B unemployment, but travel costs for your dependents will not be covered.
Is My H1B Visa Status Still Valid After a Layoff?
Yes, for a maximum of 60 days, you are still in lawful status even after an H1B layoff. You lose your H-1B Visa status and start to incur days of unlawful presence if you fail to obtain employment in the US, change your visa status, or adjust your status within this period.
How Long Can I Stay in the US Without Employment?
You are only given a 60-day grace period to remain in the USA without a job as an H-1B Visa holder. One of the conditions of the H-1B status is for you to maintain your employment with your sponsoring company. Failure to comply with this rule necessitates a departure from the United States.