Important Immigration Considerations During Layoffs

Amid worries of a recession and rising inflation, the tech sector recently announced a significant number of layoffs which have adversely affected H-1B and L-1 visa holders, as well as those benefitting from employer sponsorship for Green Cards to live permanently in the United States. Continued compliance with immigration regulations enforced by both the Department of Homeland Security and the Department of Labor (DOL) is especially important for companies such as these, and really any company, that has hired a foreign national and is now affected by a reduction-in-force. On the positive side, employers who have difficulty filling positions for much needed highly skilled workers now have the opportunity to recruit from those facing layoffs.

Impact of Layoffs on H-1B Employers and Visa Holders

Employers who have laid off employees in H-1B status have two fundamental considerations that must addressed. First, the employer must notify United States Citizenship and Immigration Services (USCIS) that the H-1B employment has ended and while not mandatory, they can also withdraw the related labor condition application filed with the DOL. Once laid off, the H-1B employee has a discretionary grace period to find alternative H-1B employment or other lawful basis for sponsorship. They will still be considered as having maintained status following the cessation of their employment for up to 60 consecutive calendar days or until the end of their authorized validity period (whichever is shorter). If the grace period has passed or their authorized validity period has expired and the former H-1B employee has been unable to change status to another visa category or find alternative H-1B employment sponsorship, they risk accruing unlawful presence which can severely hinder their re-entry in the United States in the future. Employers who are willing to hire H-1B employees who have faced a layoff, should be aware that portability rules may permit the H-1B employee to start work as soon as the new employer properly files an H-1B change of employer petition for a worker in H-1B status, without waiting for the petition to be approved. It should also be noted that the regulations permit this discretionary grace period to apply to workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents.)

Second, H-1B employers are obligated to pay for the cost of the H-1B employee's return transportation to their home country if the H-1B has been unable to find alternative H-1B employment or another basis for visa sponsorship.

Opportunities for Employers Looking for Highly Skilled Workers

For companies looking to hire specialty occupation workers, one general obstacle has been the annual limit on H-1B's and being lucky enough to have the worker selected in H-1B "lottery." However, the lottery is not an issue when recruiting a worker who has been through the process and is now in H-1B status. This would allow a new employer to hire a foreign national in H-1B status without the concern of the foreign national being picked in the annual H-1B lottery. Generally, a noncitizen on H-1B status in the United States is limited to a period of six years in H-1B status. However, an employer wishing to employ a noncitizen who was laid off while on H-1B status may file an H-1B change of employer petition if the noncitizen is in that 60-day grace period and has remaining time left during the six-year period, or they meet certain requirements allowing them to go beyond the six-year limitation. In some instances, the employer may even be able to sponsor a laid-off H-1B employee who has returned to their home country without the anxiety of the H-1B employee being picked in the lottery since the employee would have already been counted towards congressionally mandated numerical cap on H-1B visas.

Another consideration employers should take into account in the face of layoffs is the use of the part-time H-1B. A part-time H-1B could be a viable option if the employer is interested in hiring or keeping an H-1B employee on staff but there are concerns of sufficient revenue to cover full time employment. As a general rule, the H-1B employee must be making at least a living wage or enough for reasonable support. Therefore, when part-time employment is considered anything less than 35 hours and there's no minimum of hours under the regulations for part-time employment in the H-1B context, it can be an important part of the discussion when seeking to keep workers on staff or looking for new talent. Employers should be sure to check DOL regulations to be sure they remain in compliance with any DOL reporting obligations in the part-time H-1B scenario.

Employers can also see opportunities in hiring laid off H-1B employees who already have adjustment of status applications pending for at least 180 days with an underlying valid I-140 immigrant visa petition. In such cases, the new employer may be able to transfer that underlying I-140 to new offer of employment if the offered position is in the same or similar occupational classification. This is particularly useful to know considering the long wait times for approval of adjustment of status applications and the priority dates for persons born in specific countries. It can save the new employer from starting the PERM process all over again and may provide a shorter wait until their new employee becomes a permanent resident of the United States.

Impact of Layoffs on L-1 Visa Holders

While L-1 visa holders are also permitted to change employers in order to maintain L-1 status, their new employers must be an affiliate, branch, parent, or subsidiary of their previous employer abroad. Payment of costs of return transportation to their home country is not required for L-1 sponsors. However, similar to the H-1B employee, they too are afforded the same 60-day grace period for finding alternative employment once laid off or else they are in jeopardy of accruing unlawful status or presence in the United States.

Impact of Layoffs on Green Card Processing

An Employer who wants to sponsor a foreign national for a Green Card is generally required to obtain certification from the Department of Labor that qualified US workers are not available for the position. The process is often referred to as "PERM." Employers should also consider how the timing of layoffs can impact their ability to continue the PERM process. The PERM process requires compliance with notice obligations enforced by the DOL which could affect the company's ability to use the permanent position as their basis for sponsoring the foreign national. The labor certification process involves the posting of advertisements, notice to employees, and the filing of a labor certification application by DOL. If an application for labor certification has been filed within six months of a layoff, the employer is required to notify recently laid off U.S. workers with the opportunity to apply for the open permanent position. Notice of the position opening must be provided to potentially qualified laid-off U.S. employees who worked in the same metropolitan area where the position is located and in a position where they performed the same or similar job duties as the position in the labor certification application. Obviously, if a US qualified worker is available for the position offered, the PERM application could not continue.

The Need for Experienced Immigration Counsel

The definitive time limit for finding a new suitable employer who is willing to sponsor a worker can foster a sense of instability, uncertainty, and for many workers it can even mean having to abandon hope of permanent residency after several years of living in the United States. However, layoffs don't need to be the end of the road for the temporary or permanent worker and can be an opportunity for employers to recruit talented and skilled workers. Employers should seek immigration counsel if they are considering hiring these workers and want to be apprised of the visa-related options that may be available to these noncitizens so that they can preserve lawful status and resume employment in the United States. Some options may involve leaving the United States and restarting the visa process or seeking alternative visa categories while in the United States. Should your company need to hire temporary H-1B or L-1 workers or even a noncitizen who is well on their way in the sponsorship process for a permanent position, you should seek the advice and counsel of an experienced immigration attorney to explore some of the hiring options available.