Tech Layoffs Put Extra Strain on H-1B Workers

Roy Maurer By Roy Maurer December 5, 2022
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​More than 45,000 technology workers were laid off in November, among a flurry of workforce cuts made at high-profile companies such as Amazon, Meta and Twitter.  

And while losing a job is cause for concern for anyone, the stress is heightened for workers with temporary H-1B visas, who suddenly have a looming deadline to find another job and employer willing to sponsor them; change their visa status; or return home.

"Most foreign nationals with H-1B visas have only 60 days following a termination to find another job or leave the country," said Avram Morell, an immigration attorney in the New York City office of Pryor Cashman. "They often have lived in the U.S. for years and laid down personal and professional roots."

That's especially true for workers from India and China who have been on extended H-1B visas for years or decades while waiting for green cards to become available. "Those now in the grace period may have been in the U.S. for a decade or more and have homes, spouses and U.S. citizen children," said Sophie Alcorn, a Silicon Valley-based immigration attorney and CEO of Alcorn Immigration Law.

"We have received a deluge of inquiries from H-1B workers who are terrified that if they can't find a new employer to transfer their visa to or figure out a new status, they will have to leave the country."

She added that the downsizing has come at a bad time at the start of the holiday season when many hiring managers take time off and organizations pause hiring until the new year. On the other hand, employers can take advantage of the opportunity to hire in-demand tech talent that may have previously been out of reach.

"Funded startups with extra cash are reaching out to me asking about hiring some of this amazing talent newly on the job market," Alcorn said. "If employers are looking to hire, this is an amazing opportunity to retain brilliant, experienced workers who will be grateful for a long time for the opportunity to stay in the country."

These workers could be more attractive because they've already been counted against annual H-1B visa quotas, so potential employers wouldn't have to enter a lottery to be able to sponsor their visas and hire them.

It's not known what percentage of the announced layoffs include workers with H-1B visas, but experts believe it is within the range of 10 percent to 30 percent. U.S. technology companies have relied heavily on work visas to hire tens of thousands of people each year.

Options for Laid-Off Workers

Alcorn said the first thing workers need to figure out is their last day of employment, to know when the 60-day countdown begins. Start looking for new opportunities immediately, she added, because preparing a change-of-employer petition for U.S. Citizenship and Immigration Services (USCIS) will take some time.

"The best option for a laid-off H-1B worker is to find a new sponsoring company that will file a change of employer petition, with premium processing, so that USCIS receives the petition within the 60-day grace period," Alcorn said.

Farhana Nowrin, an immigration and mobility attorney at global payroll provider Deel, based in San Francisco, added that the worker will need to "gather a handful of documents to submit with the H-1B transfer application, including a resume, pay stubs, university degree, transcript and existing H-1B approval. It's relatively simple. Bonus points if your previous employer will share the previous H-1B application as a helpful road map for approval."

Fortunately, the laid-off worker can begin working at the new organization as soon as USCIS receives the petition and doesn't have to wait for the new approval to start working, Alcorn said.

Nowrin said that if a new employer can't be found, other options could include getting hired with a different work visa, such as the H-4 dependent visa for spouses of H-1B holders; the O-1 visa for anyone at the top of their field; or the E-1 or E-2 visa for citizens of certain treaty countries.

"If you've got some savings and don't need to make income right away, you can potentially stay in the U.S. by doing some nonwork activities on visas that allow you to be in the country and not be employed," Nowrin said. These options include changing to a nonwork status such as the visitor B-1 or B-2 visas, or the F-1 visa for students.  

"While not a long-term option for most people, these nonwork visas can keep you in the U.S. while you figure out what direction you want to go with your H-1B or other work visa," she said.

Changing to B visa status would allow the laid-off employee up to six months to find a new employer and change their status back to H-1B when they find a new job, Alcorn said.

Another option is to apply for a self-sponsored green card, Nowrin said. "A self-sponsored green card is an often-overlooked option, and the vast majority of H-1B holders are not aware that they might qualify for self-sponsored green cards."

As a last resort, workers could return to their home countries to conduct their job search. "Sometimes leaving the U.S. makes the most sense," Nowrin said. "If you decide to move, you can apply for another U.S.-based job from outside the U.S. without any legal restriction on taking your time to find the right job. Or you may discover other employment opportunities abroad, especially with remote work on the rise. It's easier than ever for employers to hire talent regardless of where they live."

Green Card Woes

A layoff can also completely upend the aspirations of those trying to secure a green card, depending on where they are in the process.

"The further someone is in the process, the more options they have," Alcorn said. She explained that those with an approved I-140 petition for at least six months can change jobs without losing their priority date—their place in line—for receiving a green card. If the worker has already filed an I-485 to adjust status to permanent residence and that application has been pending for at least 180 days, the worker can continue that process with a new employer in the same or similar occupation.

But applicants who are laid off in the early stages of the process will likely have to find a new employer willing to sponsor them for a green card.

Stuck Abroad

Alcorn advised against traveling abroad during the 60-day grace period. The situation is even more dire for H-1B workers who happen to be overseas when they are notified about being laid off. That's because they cannot return to the U.S. unless they have a valid visa. "Check if you have a multiple-entry H-1B visa," Alcorn said. "The new sponsoring employer can file for an H-1B and consular processing. With a new approval notice, you can re-enter from abroad with an existing H-1B notice from the prior employer."

Alcorn said some people have considered re-entering the U.S. under the 90-day visa waiver program. However, not only are they not allowed to work, they also cannot change their status while in this program. "They would have to depart and re-enter if they got a new H-1B offer," she said.

Further Impacts

Morell said the recent and forthcoming layoffs in the tech industry can have a huge impact on foreign workers who remain at the organization. "For the foreign workers who have been lucky enough to avoid the job cuts, many will find their green card application processes scuttled, as a recent layoff creates legal obstacles to applying for a green card—even for those who are still working at the company," he said.

That's because Department of Labor (DOL) regulations restrict employers from beginning the green card process for anyone when the employer has conducted a layoff of similarly situated U.S. workers within the previous 180 days. The DOL will audit cases that are already pending when a layoff is announced to ensure that qualified U.S. workers were not laid off.

"Reductions in force also affect the pipeline of foreign students in STEM programs at U.S. universities who are the future tech workers of America," Morell said. "If U.S. companies signal that they are firing rather than hiring, foreign students will look to study elsewhere in countries where their investment in education will result in jobs upon graduation."

Companies with up to 250 employees looking to sponsor an H-1B transfer for someone who was recently laid off can take advantage of an offer from Bridge and ImmiPartner, who are pledging $250,000 in free H-1B legal services to companies to support laid-off tech workers. They are providing free assessments, education for companies new to H-1B sponsorship, and case processing.

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