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Employment Termination: What Are My Immigration Options?

Posted by Kyle Tasch | May 31, 2024 | 0 Comments

By Attorney Amanda Mitchell

Being terminated from a job can be an incredibly stressful experience, and this stress can be magnified when one's home and life in a foreign country are tied to their employment and a temporary nonimmigrant status. The sudden loss of income and the uncertainty of finding a new job within a limited timeframe can lead to immense financial and emotional strain. Unfortunately, this is currently not uncommon in the tech sector, where significant layoffs have directly impacted many nonimmigrant workers. As companies downsize and restructure, employees find themselves not only jobless but also facing the daunting prospect of having to navigate complex immigration processes and potentially leaving their established lives in the United States within 60 days. 

What is the 60-Day Grace Period?

The United States Citizenship and Immigration Service (“USCIS”) introduced the 60-day grace period to prevent nonimmigrant workers from immediately accruing unlawful status as a result of voluntary or involuntary cessation of employment. 

Nonimmigrant workers holding E-1, E-2, E-3, H-1B, L-1, O-1, and TN status are granted 60 consecutive days of maintained status starting the day after their employment terminates. During the grace period, they are considered to have maintained status in the same classification they held prior to the end of their employment but are not granted authorization to work. 

This grace period lasts for up to 60 consecutive calendar days or until the expiry of the I-94, whichever is shorter. It is important to note that the grace period ends upon departure from the US. If a nonimmigrant worker departs during the maximum 60-day grace period, they must seek another immigration status to reenter, as the grace period cannot be recaptured upon reentry.

What can be done within the 60-day grace period?

During the 60-day grace period, nonimmigrant workers have several options to explore. Even though the grace period does not grant work authorization, this time can be utilized to change, extend, or adjust their status within the United States. 

1.    Secure New Employment and Extend your Status 

One primary course of action is to seek new employment and submit a non-frivolous and complete petition to gain work authorization with a new employer before the 60 days or the I-94 expires. For most nonimmigrant categories, employment authorization begins once the petition is approved. The nonimmigrant worker would not have to depart the US by the 60 days as they would be afforded implied status while awaiting a final decision. However, portability rules apply for those in H-1B status who are filing a change of employer petition, allowing them to start working immediately upon the employer filing.

2.    Change of Status

If securing new employment and submitting a petition prior to the expiry of the grace period is not possible, nonimmigrant workers have other options. They can file a change of status application to request B1/B2 status, which can provide more time to secure new employment if the application is timely filed. A properly filed change of status application can afford the individual implied status while the application is pending. 

3.    Adjustment of Status

Some individuals may be eligible for either a family-based or employment-based immigrant visa, depending on the visa category and their immigration history. Options such as self-petitioning as an EB-1 Extraordinary Ability or EB-5 Immigrant Investor may be available, but these are dependent on various factors, and consultation with an immigration lawyer is strongly recommended. 

4.    Timely Departure 

Despite the available options to remain in the US, sometimes the most comfortable choice is to depart before one's status expires. This can be helpful to those in H or L status as it preserves allowable time and avoids potential complications. Departing before the last day of one's status is advisable to minimize the risk of unanticipated delays.

It is highly recommended that you contact an experienced immigration lawyer during this challenging time. CTM Legal Group can assess your unique situation, explore all available options, and ensure that you are not violating any conditions of your nonimmigrant status. Our knowledgeable attorneys will work with you to determine the best strategy to meet your short-term and long-term immigration goals, whether that involves securing new employment, changing your status, or exploring alternative visa categories. In an uncertain job market, seeking professional legal guidance can provide much-needed reassurance and help you navigate the complexities of the US immigration system with confidence.

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