An H-1B visa holder is allowed to pursue another job if laid off, but immigration officials are making this more challenging. Decisions by U.S. Citizenship and Immigration Services adjudicators may be discouraging visa holders from filing B-2 visas to extend their stay. Immigration attorneys say in these cases USCIS is not following the law. Individuals wishing to stay and work in the United States face difficult choices.

H-1B temporary visas are often the only way for high-skilled foreign nationals to work in the United States long term. Employers must pay the higher of the actual or prevailing wage paid to U.S. professionals with similar experience and qualifications. Companies recruiting at U.S. universities find that international students account for approximately 75% to 80% of full-time graduate students in AI-related fields, such as computer and information sciences.

Immigration Service Adjudicators And The 60-Day Grace Period

When an H-1B or other visa holder loses their job, a discretionary 60-day grace period starts. Attorneys say the window can be insufficient, creating a challenge for employers and foreign-born professionals.

“In the current environment, with layoffs continuing in the technology and consulting sectors and USCIS adjudications slowing, the 60-day window is increasingly inadequate for professionals who need to find new sponsoring employers, have a new petition prepared and filed, and manage the logistics of a job transition,” said Vic Goel of Goel & Anderson in an interview.

“An alien admitted or otherwise provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien’s classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period,” according to DHS regulations .

DHS can “eliminate or shorten this 60-day period as a matter of discretion.” If an individual who was laid off leaves the United States and attempts to return, the 60-day grace period may no longer apply. In effect, the individual has forfeited the 60-day grace period by leaving. In addition, because the individual left the country, any new petition that an employer files could become subject to the $100,000 H-1B fee, which remains in litigation.

A common tool H-1B and other visa holders use is a “bridge” application. That means filing Form I-539 to change status to B-2 visitor before the grace period expires. Goel notes that a timely-filed I-539 bridges the individual into a period of authorized stay while the application is pending. It does not preserve lawful status, but it protects against the accrual of unlawful presence and provides time to pursue a new petition or other lawful options. An approved B-2 change of status keeps the worker in the United States so that the change of employer petition can be approved while they are in lawful status, which is the condition that avoids the $100,000 H-1B fee and keeps the hire viable.

“Unfortunately, we are now seeing a significant increase in Requests for Evidence and Notices of Intent to Deny from USCIS adjudicators in these cases, applications filed in proper sequence, before the grace period expires, following a straightforward separation from H-1B employment,” said Goel. “USCIS is issuing notices that raise questions about maintenance of status, purpose of stay and financial support. More troubling, some of these notices assert that seeking employment or interviewing for positions is impermissible in B-2 status.”

The Immigration and Nationality Act defines a B visa as permissible for an individual “who is visiting the United States temporarily for business or temporarily for pleasure.” (Emphasis added.) If USCIS were to adopt the position that seeking employment is equivalent to working, it would impose a significant restriction on the activities permitted under a B visa.

The legal prohibition on B visas involves individuals being paid to work. “The operative limitation in the statute is the performance of labor, not the broader concept of seeking or exploring employment,” said Goel. “The statute does not prohibit activities such as interviewing, networking or communicating with prospective employers. It draws a clear line at engaging in work within the U.S. labor market.”

Immigration Challenges Facing Laid-Off H-1B Visa Holders

Maya, a former international student from India, graduated from the University of Southern California with a master’s degree in digital media. It was a STEM program. She worked as a UX writer on Optional Practical Training. “The company applied for my H-1B visa in the lottery,” said Maya in an interview. “I got the visa on my third and last try.” She was laid off from her job while in H-1B status. “An attorney and some friends advised me to transfer my visa to B-2 within 60 days of the layoff.” When the B-2 change of status was granted, Maya had six months to find another job.

Within about three months, Maya received a job offer and shortly after began working for a fintech company. However, after several months, the company redistributed her design team’s duties and laid off the team’s members. “I reached out to the same attorney I worked with on the B-2,” she said. “The application fee for my second B-2 was higher than my first one. I’m waiting to hear back about my B-2 or a Request for Evidence if needed.”

If Maya does not find a job in the United States, she will have no choice but to pursue other options, including applying for jobs in Singapore, Malaysia and London. Given her work on AI, Maya believes she might be eligible for an O-1 visa. She knows she may need to return to Mumbai and explore other options.

“I moved to the U.S. in 2019, and Covid happened soon after, said Maya. “Over the years, Los Angeles became my home in ways I never expected. By 2021, I had graduated with a STEM degree, found a job in tech and built friendships that became my core community.”

Maya said she didn’t come to the United States just for a degree or a job. “I’d been in search of creative spaces. L.A. gave that to me. It gave me access to creativity that made me feel expansive and inspired. I was immersed in music and culture, and surrounded by ambitious people from around the world. Leaving now would be giving up this sense of home.” She added, “It feels like the system that made this journey possible is now standing in my way.”

Immigration adjudicators may discourage visa holders like Maya from seeking employment after layoffs, thereby limiting their opportunities to stay and work in America. “The practical effect of these Requests for Evidence and Notices of Intent to Deny is to create the impression that the case is already lost and the person should leave the United States,” said Vic Goel. “It is pushing laid-off workers toward a departure that can cost them reentry, trigger a six figure fee on any new petition and potentially extinguish their ability to be sponsored at all.”