What Do Tech Layoffs Mean for Individuals in the U.S. on a Work Visa?

You’ve likely seen the news that Twitter’s new owner, Elon Musk, laid off 3,700 people from the company – nearly half of its staff. While Twitter is making the headlines, many other tech giants have also laid off large numbers of staff. Lyft let go of 13% of its workforce, Opendoor let go of 18% of its workforce, Chime let go of 12% of its workforce, and both Apple and Amazon have reportedly entered into hiring freezes.

What do these layoffs mean for individuals working in the U.S. on an employment-based visa or green card? We take a closer look at the impact on each category below: 

• H-1B Visa Holders:
  • There are approximately 625 to 670 Twitter employees in H-1B status, or about 8% of the company’s 7,500 employees, based on a National Foundation for American Policy analysis of USCIS data. (This is an estimate since Twitter has not published a precise number).
  • Stripe has approximately 300 to 350 employees in H-1B status, based on an NFAP analysis of USCIS data. That represents about 4% to 5% of its workforce.
  • An H-1B visa is often the only practical way to hire a foreign national long term, particularly a recent international student. 
    • At U.S. universities, international students account for 74% of the full-time graduate students in electrical engineering and 72% in computer and information sciences. 
  • When an employer lays off an H-1B visa holder, 3 obligations are triggered:
    • (1) USCIS regulations require the employer to notify USCIS of any ‘material change’ in the terms or conditions of the H-1B’s employment, and a termination or layoff is such a ‘material change.’ 
    • (2) The statute also requires employers to pay the ‘reasonable costs of return transportation’ to H-1B workers terminated before the end date of their H-1B authorized stay to their home country or last country of permanent residence.
    • (3) The DOL regulations require an employer to continue paying the H-1B employee’s salary until the employer notifies the H-1B worker of the termination and complies with the first two obligations.
  • If these requirements are not fulfilled, the employer can be subject to significant fines and back wage awards if this is not done correctly. 

• H-1B, E1, E2, E3, L1, O1, & TN Visa Holders:
  • Once the visa holder is laid off, they enter a grace period of either 60 days or the remaining portion of their status as indicated on their I-94, whichever is shorter. 
    • During this grace period, he or she must:
      • Leave the U.S., 
      • Submit an alternative request with USCIS (e.g., a change of status to visitor), or 
      • Have another employer file new visa petition on their behalf.
    • If they don’t do so within the 60 days, they are then viewed as violating their immigration status. 
    • If they don’t have a transfer job offer lined up after about 45 days, they might want to consider filing an I-539 application to change status from H-1B to B-2 to “buy time” to transition out of the U.S. This way they can ask for 6 more months; however, they won’t have authorization to work because it is based on the assumption that they can support themselves based on their savings.

• Those Waiting on Their Green Card:
  • Once someone gets to the 2nd stage of the green card process—the I-140 immigrant petition—and that petition has been approved for at least 6 months, they retain their priority date, which is their place in line for the green card backlog, if they lose the job they were sponsored for, they often will need to repeat the first couple of steps of the process with a new employer
    • If they lose their job, this can be particularly important to people from backlogged countries such as India and China where the wait in the backlog is exceptionally long. 
  • Once the last stage of the green card process, called adjustment of status, has been pending for 6 months, they have more flexibility to change to a different employer without needing to start the process over again from the beginning. They will just need to show they have a job offer to finish the green card process.

• H-1B Visa Holders Filing for Adjustment of Status:
  • For H-1B visa holders who have approved immigrant petitions but have not yet filed applications for adjustment of status due to the annual green card quotas, a layoff does not affect their priority date for the quota.
  • An H-1B visa holder cannot make an application for adjustment of status unless they have a job offer from the petitioning employer in the same job for which the immigrant petition is approved. 
  • An H-1B visa holder who transfers to a new employer would need that employer to file a new labor certification and immigrant petition on their behalf. That new immigrant petition would have the same priority date as the first immigrant petition filed by earlier employers.
  • For H-1B visa holders who have approved immigrant petitions and were not able to file applications for adjustment of status due to annual green card quotas, there is a regulation allowing that H-1B worker and any spouse or child to request employment authorization for ‘compelling circumstances,’ which might exist if the worker is laid off. 
    • It would be preferable, however, for the H-1B visa holder to extend their H-1B status with a new employer rather than ending their H-1B status by asking for employment authorization instead.
  • H-1B visa holders who were able to file applications for adjustment of status before a layoff, their application for permanent residence will remain pending and can be approved if the H-1B visa holder obtains another job in the “same or a similar” occupation.

These are complex areas of U.S. immigration law. If you have any questions on the above, be sure to contact Berardi Immigration Law to schedule a consultation with one of our attorneys today. You can also find more information on our new Tech Workers Resources page.