It’s pretty clear that the economy is bad with only a few holdouts are denying it at this point. So what to do when you are on an H1B visa and you get laid off? Well first of all don’t panic. You likely have a visa that lasts for years at this point so you are NOT accruing unlawful presence even though you ARE out of status. What in the world does that mean? Well, simply put too much unlawful presence means that you will not be allowed back into the US for many years. Specifically, 180 days to 365 days of unlawful presence means that you will be barred from the US for three years should you leave and attempt to return. Anything over a year results in a 10 year bar to reentry should you leave the United States.
But I’m out of status so I’m accruing unlawful presence right?
No, not at all. The date on your I-94 rules your world. So if you still have time on your I-94 then you are not accruing unlawful presence until that date has passed.
GREAT! I’ll just stay!
Well the bad news is that you ARE deportable since you are out of status so that’s a really bad idea! Additionally, you can’t change your status to any other status once you are laid off since you are no longer in valid non-immigrant status. That means you’ll have to leave if you try to change your status.
So what do I do??
I can’t answer that question for you. However, I can say that you aren’t supposed to be here (and I would never advocate that you violate any immigration laws) BUT if you quickly find a new and appropriate H1B visa sponsor you MAY get lucky and the USCIS MAY allow you to change employers without leaving. It’s certainly happened before and, arguably, you getting laid off isn’t your fault and you and your new employer shouldn’t be punished for you getting laid off. In other words, you shouldn’t have to spend the money to leave the US, get your new H1B issued, and then reenter costing you and your employer time and money. The likely worst case scenario in this instance is the USCIS issuing you an H1B but making you leave to get your new visa stamped. But you’ll have to find an appropriate job and beg for mercy from one of the most merciless agencies in the United States!
Justin G. Randolph has been practicing immigration law since 2001.
As a student at the DePaul University College of Law in the late 1990’s, he took immigration law courses taught by experts in the field. A clinical asylum course at DePaul provided him with his first hands-on experience in life or death immigration cases.
After law school, Justin worked for a boutique immigration firm where he handled a wide variety of immigration matters.
The Law Office of Justin G. Randolph opened in 2004 and handles immigration and deportation/removal cases for clients around the world.
In addition to his practice, Justin has been teaching immigration law and procedure since 2007 for students in the paralegal program at Wright College.