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  • Writer's pictureRathee Law Firm

USCIS HIGHLIGHTS NEW OPTIONS FOR FIRED H-1B WORKERS


USCIS RESPONDS TO FIIDS LETTER ON TECH SECTOR LAYOFFS


The U.S. Citizenship and Immigration Services (USCIS) has clarified that workers holding H-1B visas who lose their jobs do not have to leave the country within 60 days and that they have multiple options to remain in the United States while continuing their job search. The USCIS director Ur. M. Jaddou wrote a letter to the Foundation for India and Indian Diaspora Studies (FIIDS), a non-profit organization that has been advocating for laid-off H-1B visa holders, in response to their request to extend the up to 60-day grace period for terminated workers.


THE IMPACT OF JOB LOSS ON NON-IMMIGRANT WORKERS


The USCIS letter said that the agency understands the financial and emotional impact that job loss can have on employment-based non-immigrant workers and their families in the United States. The letter also said that the agency is aware of the issue of involuntary terminations, especially in the tech sector, where many H-1B visa holders work.


OPTIONS FOR STAYING IN THE US AFTER JOB LOSS


The USCIS letter said that when a non-immigrant worker’s employment is terminated, they may not be aware of their options and may wrongly assume that they have no option but to leave the country within 60 days. However, the letter said that there are several options for staying in the US after job loss, such as:

  • Applying for a change of status to another non-immigrant category, such as B-2 visitor or F-1 student

  • Applying for an adjustment of status to become a lawful permanent resident (green card holder)

  • Applying for a “compelling circumstances” employment authorization document, which allows certain non-immigrants to work temporarily in the US due to hardship situations

  • Being the beneficiary of a nonfrivolous petition to change employer, which allows H-1B workers to transfer their visa to a new employer

  • The USCIS letter advised non-immigrant workers who face job loss to consult with an immigration attorney or an accredited representative to explore their options and file the appropriate applications or petitions before their authorized period of stay expires. Employment Authorization in Compelling Circumstances

Some non-immigrant workers who face job loss may be eligible to apply for an employment authorization document (EAD) based on compelling circumstances. This is a temporary relief that allows certain non-immigrants to work in the US for a limited period of time due to hardship situations.


ELIGIBILITY REQUIREMENTS


To qualify for an EAD based on compelling circumstances, you must:

  • Be in the US in a valid non-immigrant status

  • Be the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker

  • Have an immigrant visa number that is not available for your preference category and country of chargeability

  • Demonstrate that you are facing a compelling circumstance that justifies an independent grant of employment authorization Some examples of compelling circumstances are:

  • Serious illness or disability that prevents you from working for your current employer or requires you to change your employment

  • Employer retaliation against you for reporting labor violations or participating in a labor dispute

  • Significant disruption to your employer’s business, such as bankruptcy, layoffs, or revocation of the employer’s petition

  • Substantial harm to you or your family due to family violence, natural disaster, war, or civil unrest in your home country

  • Other factors that USCIS may consider on a case-by-case basis How to Apply

To apply for an EAD based on compelling circumstances, you must:

  • File Form I-765, Application for Employment Authorization, with the appropriate fee and supporting documents

  • Indicate the eligibility category ©(35) for principal beneficiaries or ©(36) for derivative beneficiaries on Form I-765

  • Provide evidence of your approved Form I-140 and your current non-immigrant status

  • Provide a detailed explanation and documentation of the compelling circumstance that warrants an independent grant of employment authorization Validity of Employment Authorization

If USCIS approves your application, you will receive an EAD that is valid for one year. You can use the EAD to work for any employer in the US during that period.


RENEWING YOUR EMPLOYMENT AUTHORIZATION


You may apply to renew your EAD based on compelling circumstances if:

  • You continue to face a compelling circumstance; or

  • You have a priority date that is less than one year from the current cut-off date for your preference category and country of chargeability according to the Visa Bulletin You must file a new Form I-765 with the appropriate fee and supporting documents before your current EAD expires. You cannot work after your EAD expires unless you have another valid work authorization.


CONCLUSION


Losing your job as a non-immigrant worker can be a stressful and challenging situation. However, you may have options to stay and work in the US legally while you look for a new employer or pursue a permanent residence. One of these options is applying for an EAD based on compelling circumstances, which can provide you with temporary relief and flexibility. However, this option has certain eligibility requirements and limitations that you should be aware of before applying. Therefore, it is advisable to consult with an immigration attorney or an accredited representative to explore your options and file the appropriate applications or petitions before your authorized period of stay expires.

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