Dear Sophie: How can I stay in the US if I’ve been laid off?

Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

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Dear Sophie,

I was laid off and I’m on an H-1B. I have enough savings to survive for a while. What should I do if I have been let go from my job? I am on an H-1B, have an approved I-140 and an I-797 that expires in March 2024.

If I have to leave the U.S., can my current I-797 be transferred to my next employer? Are there any issues I should be aware of?

— Upended & Unemployed

Dear Upended,

I’m so sorry to hear you’ve been laid off and for the stress this has no doubt added to your life! Your questions are top of mind in light of the thousands of others being laid off from Twitter, Facebook, Stripe, Brex, Lyft and other tech companies.

I realize this can be an incredibly stressful time. It is my personal life mission to help immigrants have peace of mind, including being able to stay in the United States, keep their families safe and build their dreams of making the world a better place. I am so happy to have the opportunity to share my advice through this column!

The good news is U.S. Citizenship and Immigration Services (USCIS) allows a 60-day grace period to remain in the U.S. if you lose your job while on an E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN visa. And we can turn your 60-day grace period into a total of eight months of immigration runway — it is possible to extend your time in the U.S. beyond 60 days by filing a change of status from H-1B to another category such as a visitor, student or dependent spouse.

When individuals who need visa sponsorship get laid off, we often hear their highest priority is to maintain their ability to stay in the United States beyond the 60-day grace period, especially if they own a home, have a spouse or have dependent kids in school. Often people ask me what they need to do if they can’t get a job that offers visa sponsorship within the 60-day grace period or how they can finally follow their heart to explore their own startup ideas.

Here are my recommendations for how to stay in the United States, as well as options and opportunities you should keep in mind.

To work for another company, start interviewing NOW!

Unfortunately, you cannot transfer your current I-797 to your next employer. However, you can transfer your H-1B to your new employer following the H-1B application process. If you are approved, you will receive a new I-797.

Put all of your efforts into finding another job. Get as many interviews as you can. Reach out to everyone in your network — friends, family, former colleagues, co-workers, neighbors and acquaintances. Take advantage of social media and attend networking events. Also, take a look at where venture capital is flowing these days; companies that are receiving Series A funding or above are likely hiring.

At a job interview, be direct about your need to transfer your H-1B to a new employer. If the company is not willing to sponsor you, move on. Ideally, you should accept a job offer no more than 45 days into your 60-day grace period unless you have applied for another fallback status because it can take several weeks to prepare and file the H-1B transfer.

Additionally, if you qualify for an O-1A extraordinary ability visa, you could consider using an agent to file an O-1A petition on your behalf, which would make your visa independent of any particular employer. This offers you both redundancy because you can change or add paid jobs in the United States without amending the petition every time, generally, as long as you are continuing to work in your field.

To work for your own startup, start NOW!

If you want to create your own tech venture, find someone you can work with to be your co-founder. Find out if you qualify for an O-1A ASAP or determine if you want to set up your startup to be compatible with an H-1B transfer. Talk with both an immigration attorney and a corporate attorney to devise the best structure for your startup and determine an immigration strategy for your startup to sponsor you for a visa.

For many people, if they qualify, I suggest that your startup sponsor you for an O-1A, which offers more flexibility and freedom than an H-1B transfer. Many individuals on an H-1B visa in Silicon Valley and beyond are surprised when we tell them they already qualify for an O-1A. The added benefit of the O-1A is that it serves as a stepping stone to qualify for the EB-1A extraordinary ability green card, which is currently available.

Devise a backup plan

Have a backup plan and work with an immigration attorney to assess your options. You could transfer your H-1B, become an H-4 dependent visa holder if your spouse has an H-1B or change your status to an O-1A visa.

Since you have an approved I-140 green card petition, there are various opportunities to both preserve your green card process and also transfer it to another company or formulate it as a self-petition so you are no longer dependent on any particular company for your green card and permanent residence in the U.S.

The good news is that you will retain your green card priority date and it can be used on another EB-1, EB-2 or EB-3 I-140 petition! Your priority date is the date that either:

• a PERM application to the U.S. Department of Labor for an EB-2 advanced degree, an exceptional ability green card, or an EB-3 skilled worker green card was submitted to USCIS.
• or Form I-140 green card application was submitted to USCIS.

That means if you self-petition for a green card or if your new employer agrees to sponsor you for a green card, you will retain your place in the green card line — and not have to go to the back of the line. If you were born in India or China, and your I-140 application was for an EB-2, EB-2 NIW (National Interest Waiver), or EB-3 green card, ask your immigration attorney to assess whether you would be a candidate for an EB-1A green card, which is currently available regardless of country of birth.

Start gathering documents

While you’re waiting for job interviews and job offers, make sure you assemble all the documents you will need to provide to your new employer for your H-1B transfer. This includes:

• A copy of your current visa and forms I-797 and I-94.
• Your resume.
• Pay stubs from your previous employer.
• Letter of recommendation.
• University degree and transcript.
• Academic evaluation.

If you’re planning on pursuing an O-1A, start gathering letters of recommendation and evidence that you meet at least three of the eight O-1A requirements, such as:

• Nationally or internationally recognized awards you have received.
• Proof you are employed in an essential capacity for an organization with a distinguished reputation.
• Articles written about you or your company.
• Proof you judged a hackathon or other competition.
• Proof you command a high salary.

Check out this Dear Sophie column in which I talk about each O-1 criterion in more detail.

H-1B transfer once you find a job

Whether you’re working for yourself or for another company, make sure you keep track of your timing: A Form I-129 H-1B application or O-1A application will need to be submitted to USCIS on or before the 60th day since you were laid off.

If you’re working for a new company, ask your new employer to initiate the Labor Condition Application (LCA) process ASAP. Submitting an LCA to the U.S. Department of Labor for approval is the first step in getting your H-1B transferred. The Labor Department usually takes seven to 10 days to process an LCA. The approved LCA will need to be included with the H-1B petition that your new employer will submit to USCIS on your behalf.

Your new employer can request premium processing for an H-1B application, which means USCIS will either issue a request for evidence or make a decision on your case within 15 days. Premium processing is also available for O-1A applications.

You can begin working for your new employer as soon as USCIS receives your H-1B or O-1A application and issues a Form I-797 receipt notice. As long as the I-129 for either the H-1B or O-1A is filed on or before the 60th day of your grace period, you’re allowed to remain in the U.S. while waiting for USCIS to make a decision. That means your stay will extend past the 60-day grace period!

All my best,

Sophie

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The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer. “Dear Sophie” is a federally registered trademark. You can contact Sophie directly at Alcorn Immigration Law.

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