Workforce Layoffs or Terminations During COVID-19: Immigration Considerations for Employees
Nonimmigrant visa holders with a work-authorized status who no longer hold the same employment must either find another valid immigration status or prepare to depart the country. If the employer has to terminate an E-1, E-2, H-1B, L-1, O-1 or TN visa holder’s position, the individual would be afforded the 60-day grace period (once per each validity period).
When an individual is admitted into the U.S. with a nonimmigrant visa for temporary employment, once the employment ends (plus any applicable grace period), the individual must make plans to leave or switch to another immigration status. Unlawful presence could affect future applications or petitions for employment benefits and could lead to a bar to reentry to the U.S.
- If an individual departs the U.S. after accruing more than 180 days but less than 1 year of unlawful presence during a single stay, he or she would be subject to a 3-year bar to reentry.
- If an individual departs the U.S. after accruing one year or more of unlawful presence during a single stay, he or she would be subject to a 10-year bar to reentry.
- A permanent bar may be applicable if reentering or trying to reenter without being admitted or paroled after having previously accrued more than one year of unlawful presence in the aggregate during one or more stays in the United States.
60-day Grace Period
If terminated or an employee voluntarily leaves his or her job, the employee can remain in the U.S. the earlier of:
- 60 days, or
- Until the end of the I-94 validity period.
The employee can either search for another job during that time or plan to make a return trip back to his or her home country. With travel restrictions in place across the globe, some workers may be unable to return to their home countries immediately, but employees should consider looking for alternative solutions to avoid accruing unlawful presence by remaining in the U.S.
Some considerations for the 60-day grace period:
- For each petition, the employee is granted a 60-day grace period that must be used consecutively. Any time that is not used is lost. If the employee files a new petition with a new employer, the new petition would provide a new 60-day grace period.
- Employment is not authorized during the grace period.
- The employee can also change his or her status to another nonimmigrant status, such as F-1, H-4, etc. if applicable.
RISK: The 60-day grace period is a discretionary benefit and therefore the USCIS is not required to grant the grace period benefit. The employee will know whether the USCIS grants the benefit when it adjudicates a change of status petition.
Employment Authorization Document (EAD) for “Compelling Circumstances”
USCIS may grant employment authorization and issue an Employment Authorization Document (EAD) for up to one year if the USCIS determines that there are compelling circumstances that justify issuing the EAD.
This temporary employment authorization may be provided to certain nonimmigrants who are the beneficiaries of approved employment-based immigrant visa petitions, and who are caught in the continually expanding backlogs for immigrant visas and face compelling circumstances.
- Eligible nonimmigrant statuses:E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status
- Principal beneficiaries must have an approved I-140 petition
- Qualifying dependent spouses and children of a principal beneficiary are also granted employment authorization.
- Compelling circumstances that mandate the grant of the EAD include the following examples or situations:
- Serious Illnesses and Disabilities.
- Employer Dispute or Retaliation.
- Other Substantial Harm to the Applicant.
- Significant Disruption to the Employer.
The USCIS takes the position that “job loss” by itself will not be considered substantial harm to the applicant. However, if the applicant can show “additional circumstances that compound the hardship associated with job loss,” the individual may establish eligibility for a compelling circumstances EAD. Similarly, unemployment alone is not a compelling circumstance, but it may rise to that level in conjunction with other factors.
RISK: If you receive a compelling circumstances EAD and begin working based on this EAD, you will no longer be maintaining your nonimmigrant status and therefore, would be ineligible to change or adjust status in the U.S. However, you generally will not accrue unlawful presence in the U.S. while the EAD is valid or while your application is pending if you filed a non-frivolous application on time.
Visit Challa Law Group’s COVID-19 Resource Page for Employers & Foreign Workers to read about other critical immigration updates or email us at email@example.com with any questions.