“I’m on H-1B and just got laid-off. What do I do now?”
First of all, do NOT panic.
Uncle Sam is not going to kick you out tomorrow. You have time to plan and act. In fact, you generally have at least 60 days to file another H-1B petition with a new employer.
“And if I don’t have another job by then?”
Again, no need to panic. You can file an I-539 Change of Status application to Visitor status, or H-4 if your spouse holds H-1B status. This keeps you in the U.S. in valid status while you look for options.
You know what they say: “Necessity is the Mother of Invention”
Perhaps this is the time you start your own business. You are in tech. You likely worked for a Silicon Valley company. You have ideas to make something better, faster, cheaper. VCs are loaded with cash to invest in great ideas and great founders. Some of the great American tech companies were started during a recession (e.g. Microsoft, Square, Instagram).
Ok, so now that you have calmed down a bit. What are the next steps?
Immigration law gives you a 60-day “grace period” from the last day of your previous employment to file for an H-1B Change of Employer. As long as your petition is received by USCIS before the end of the 60 days, you will be just fine. Keep in mind the LCA itself takes 7 days to come back. So, don’t wait to day 51, thinking you can still make it before the deadline.
If you don’t have a job offer by then, or the new employer isn’t moving quickly in the hiring process, you may want to consider a stop-gap process: filing the I-539 Change of Status Application from H-1B to either B-2 visitor, or H-4 dependent spouse if your spouse is also in H-1B status.
The only exception is if your I-797 H-1B Approval Notice expires before the 60-day grace period ends. Then you need to file before your I-797 H-1B Expiration Date.
Don’t confuse this with your H-1B visa stamp. The H-1B visaat stamp allows you to board the plane to the U.S. It has nothing to do with you being able to enter the U.S. to live and work.
“What if I don’t have any job offers and I am nearing my 60-day grace period?”
As we explained above, you can file an I-539 Application to Change Status within the 60-day grace period. You can file this application yourself. You do not need an employer to sponsor you. It’s a simple application, and the receipt of the application by USCIS proving you filed the Change of Status within the 60-day grace period buys you the time you need to find a new employer and file the Change of Status again from B-2 or H-4 to H-1B. For example, currently, the California Service Center is taking over a year to process I-539 applications.
So long as you get your application in timely, you are considered to be in authorized stay in the U.S. This means you are allowed to continue to stay in the U.S., but you cannot work until you either receive a decision on your change of status application or you file the new H-1B. This filing will allow you the time needed to either secure a new job, or perhaps, start your own company.
“I do have a spouse in H-1B status. I wonder which option would be better for me, the B-2 or the H-4?”
The H-4 may be the better option for you.
- Your H-1B spouse will continue to pay the bills while you are unemployed, as the H-4 dependent category is almost guaranteed to be approved. As law mandates, in order for the second Change of Status from H-4 to H-1B gets approved, your previous Change of Status must be approved first. The officer is more likely to approve an H-4 request way faster than a B-2 request.
- If your spouse has an Approved I-140 petition, you can add the I-765 application for Employment Authorization. This may be the best possible strategy if you are not able to secure new employment within the next few months. Upon approval and issuance of your EAD, you are basically a free agent in the job market, and you can start your own company as well, just like an American citizen can.
“I always wanted to get a second degree. Do you think this is the right time to do it?”
Going back to school can certainly be an option. The only issue with filing the I-539 Application with a new I-20 and admittance to a college or university is the timing. There is no Premium Processing available for the I-539 application. Most curriculum programs start within a few months of issuance of your I-20. So, while you may be in authorized stay (pending Change of Status from H-1B to F-1), you can’t actually go to school and attend classes without USCIS’s approval. In some cases, you might be able to leave the U.S. and come back on your old (but valid) F-1 visa stamp, or go get a new F-1 visa stamp. There are some risks in travelling outside the U.S., and that should be discussed with your immigration lawyer.
“What if the company had started a Green Card application for me and then laid me off? What happens to my Green Card application?”
If the company started a Green Card application for you, and depending on where you are in the process, you may be able to:
- Transfer your Green Card application to your new employer if your I-485 Adjustment of Status application has been pending for 180 days or more.
- Transfer your I-140 Priority Date if your I-140 has been approved for 180 days or more, but your priority date was not current to allow you to file your I-485 Adjustment of Status Application. Under these circumstance, you can keep your Priority Date, but your new employer will have to start a new application for you, including PERM and I-140.
If your Green Card was still in its first stage (only the PERM has been submitted), you will not be able to transfer the priority date. Your new employer will need to restart a new Green Card application for you.
With either the Change of Status to B-2 visitor, or H-4 dependent spouse, the application needs to be received prior to the end of your 60-day grace period.
Once received by USCIS, you can continue to seek a new job.
Or…perhaps…you want to hone your cooking skills?
Or learn to play golf?
Or finally start your own company.
“But I thought I can’t work for my own company in H-1B status?”
That’s not an accurate statement. Many of our clients, even some that own more than 50%, get approved for H-1Bs. The keys to having USCIS approve a “Founder H-1B” is to prove your startup company’s ability to sponsor you, and to prove the employer-employee relationship between you and the company.
To prove the startup company’s ability to sponsor your H-1B, you MUST have:
- Incorporated company
- Bank account
- Money in the bank account to show the ability to pay the Prevailing Wage
- Office address (which could be an apartment or house but need confirmation from municipality you can run an office from the home)
To prove the employer-employee relationship, you SHOULD have:
- A Board of Directors with at least 2 other people, who can fire you
- Employment agreement with IP transfer to company
- Company By Law proving that a majority shareholders’ vote can fire the Board with or without cause.
- A person who is already employed by the company and who can take over your position should you get fired.
- A minimal viable product, or at least an old-fashioned business plan (Pitch Decks don’t adequately address USCIS concerns about startup company H-1Bs)
Obviously, it’s not as easy to start a company in the U.S. on H-1B compared to being an American citizen, holding a Green Card, or even an H-4 EAD, but it’s doable. You must have money or be able to raise enough to meet the above criteria. You likely need a co-founder who has work status (best to have an American or Green Card holder who has a similar educational background) and a couple of friends (who don’t have the same last name as you) to be independent board members.
But it’s all doable. As immigration partners at Unshackled Ventures, and counsel to nearly 300 Silicon Valley startups, we have successfully strategized, prepared, filed and got approvals of hundreds of Founder H-1Bs. Perhaps being laid off is a blessing in disguise. Necessity is the Mother of Invention.
For more information, please contact your Serotte Law case manager or email us at CSM@serottelaw.com.