Navigating a Layoff: Transitioning to Another Nonimmigrant Status Through the I-539 Application

Experiencing a layoff can be a challenging period, especially for those on employment-based visas in the U.S. However, filing an I-539, Application to Extend/Change Nonimmigrant Status, can provide the breathing space needed to strategize your next move. This application allows nonimmigrants to transition from their former employment-based nonimmigrant category to another nonimmigrant status, like a B-1 or B-2 visitor, or spousal dependent status such as H-4, TD, L-2, or O-3, or even an F-1 student visa. 

The first step after a layoff should be to assess your options promptly. Nonimmigrants generally have a 60-day grace period or up to the end of their existing nonimmigrant status, whichever is shorter. Filing an I-539 application before the expiration of this grace period is critical to avoid falling out of status.

For those looking to buy some time to explore options or prepare for the next step, shifting to B-1 (business visitor) or B-2 (tourist) status may be beneficial. Key documents include your most recently dated paystubs to show you maintained proper nonimmigrant status up to your termination and prior to filing the I-539 application, proof of adequate finances to support your stay in the U.S., and evidence of ties to your home country or a return-trip ticket to show your intent to leave the U.S. 

If your spouse holds a nonimmigrant status in the U.S. (e.g. H-1B, E-2, L-1, or O-1), you may be eligible to change your status to a dependent spouse status (e.g. H-4, E-2S TD, L-2, or O-3). This option allows you to remain in the U.S. through the duration of your spouse’s stay. Documentation for this application typically includes:

• A copy of your spouse’s visa, I-94 record, and I-797 Approval Notice;
• Your marriage certificate to prove the spousal relationship; and
• Proof of your spouse’s current employment and status in the U.S.

Pursuing studies in the U.S. can be another avenue to stay. Transitioning to an F-1 student status requires admission from a SEVP-certified institution and proof of financial ability to support your studies and living expenses. Documentation for this application requires Form I-20, issued by your prospective school and proof of adequate finances to cover tuition and living expenses.

Consider Processing Times: Be mindful of the processing times for I-539 applications, which vary across different categories. Planning accordingly will help ensure you do not find yourself in a precarious position should your application take longer than expected. Premium processing may be available for certain categories. Once your I-539 is submitted, you are not authorized to work in the U.S. Engaging in unauthorized employment can jeopardize your chances of future admissions or changes in status. 

If you depart the U.S. while your I-539 application is pending, note that it will become invalid and denied by USCIS (unless you submit a request to withdraw after your departure and before final adjudication). To reenter the U.S., you would need to present a valid visa for entry to the U.S. in the category being requested; or, if you are visa-exempt like Canadian visitors, for example, you would need to verbally request reentry to the U.S. in an appropriate category. 

Navigating post-layoff status changes requires careful consideration of your future goals and compliance with U.S. immigration laws. Whether staying temporarily as a visitor, joining your spouse on a dependent visa, or pursuing educational aspirations on an F-1 visa, each path demands thorough preparation and specific documentation.

Consulting with an immigration attorney can provide clarity and direction, ensuring your paperwork is in order and your choices align with your long-term objectives. In times of uncertainty, understanding your options can empower you to make informed decisions and navigate your immigration journey with confidence.