HR Guide: Navigating Layoffs and Change of Status (COS): H-1B to B-1 to H-1B

Part 1

Guidance for HR Leaders Managing Layoffs of Foreign National Employees

In today's dynamic workforce, HR professionals managing immigration matters must be well-versed in visa transitions, especially when foreign national employees face unexpected circumstances, such as layoffs. One crucial strategy to maintain legal status in the U.S. is filing a Change of Status (COS) application with U.S. Citizenship and Immigration Services (USCIS). This section provides HR leaders with recommendations for assisting employees in transition.

Understanding Key Visa Types

Before diving into the Change of Status process, it's essential to understand the visa types most commonly involved in employment-based immigration:

1. H-1B (Specialty Occupations)

   1. Allows foreign nationals to work in specialized fields such as IT, engineering, and finance.

   2. Subject to annual caps unless exempt (e.g., universities, non-profits affiliated with research institutions).

   3. Typically granted for up to six years.

2. L-1 (Intracompany Transferee)

   1. Designed for multinational companies transferring employees from foreign offices.

   2. Requires the employee to have worked for the company abroad for at least one year in the past three years.

3. O-1 (Individuals with Extraordinary Ability)

   1. Available for individuals with extraordinary ability in science, arts, education, business, or athletics.

4. B-1/B-2 (Visitor for Business/Tourism)

   1. B-1 is used for business activities like meetings, conferences, and contract negotiations.

   2. Does not permit employment in the U.S.

5. F-1 (Student Visa) & OPT (Optional Practical Training)

   1. Grants work authorization for graduates of U.S. institutions.

   2. STEM graduates may extend their OPT for an additional 24 months beyond the initial 12 months.

Recommendations for Laid-Off Employees

When an H-1B or other work visa holder is laid off, they typically have a 60-day grace period to find new employment or leave the U.S. Filing a Change of Status to B-1/B-2 can provide additional time to remain legally in the U.S. while seeking new employment.

Why Employees Should File for Change of Status (COS)

• Avoids Unlawful Presence: If a COS application is submitted before the 60-day grace period ends, the employee remains in a "period of authorized stay" until USCIS makes a decision.

• Provides Additional Time: The pending B-1/B-2 application can provide a bridge, allowing the employee to remain legally in the U.S. while searching for new employment.

• Allows Future H-1B Transfers: If the employee secures a new employer, they can transition back to an H-1B status without having to leave the U.S., provided USCIS approves the change.

How HR Can Support the Transition

• Provide Timely Notification: Inform employees as early as possible so they can plan their options.

• Suggest Immigration Counsel: Encourage employees to consult an attorney about their status.

• Offer Documentation Assistance: Provide copies of relevant employment documents that may be needed for future filings.

• Connect with Recruiters: Help employees network with potential employers.

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Part 2

Guidance for HR Leaders Hiring Foreign Nationals with Pending COS Applications

If a company wants to hire a foreign national who has filed for a B-1/B-2 Change of Status, the employer must carefully navigate immigration laws:

Scenario 1: Hiring Before COS Approval

If the employee finds a job while the B-1/B-2 COS is pending, the new employer can file an H-1B transfer (I-129 petition) and request a Change of Status back to H-1B. Key considerations:

• Premium Processing: Recommended to expedite the decision.

• Receipt Notice for COS: If the B-1/B-2 receipt notice is available, it helps demonstrate that the employee remained in legal status.

• Bridge Petition Issues: If USCIS has not adjudicated the pending B-1/B-2 COS, the new H-1B petition might depend on its approval.

Scenario 2: Hiring After COS Approval

If the B-1/B-2 is already approved, the employee is no longer in H-1B status and must apply for a new H-1B petition with COS from B-1 to H-1B. This process includes:

• Demonstrating Employer-Employee Relationship: The employer must prove a bona fide job offer.

• Consular Processing Option: If the COS is not approved, the employee may need to travel abroad for an H-1B visa stamp before returning.

Scenario 3: Hiring When Employee’s I-94 Has Expired

If the individual’s I-94 has expired, it complicates the process. The new employer must:

• Request Consular Processing: The employee may need to leave the U.S. to obtain a new visa stamp.

• File a Nunc Pro Tunc Petition: In rare cases, USCIS may approve an out-of-status petition if extraordinary circumstances exist.

Best Practices for HR Leaders

1. Encourage Employees to File COS Proactively: Avoid last-minute filings that may result in status gaps.

2. Monitor Receipt Notices: Delays can cause complications for prospective employers.

3. Consult Immigration Attorneys: Every case has unique factors, and legal guidance ensures compliance.

4. Consider Alternative Work Visas: If an H-1B transfer is not feasible, explore options like O-1, TN (for Canadians/Mexicans), or E-3 (for Australians).

Conclusion

For HR leaders, understanding Change of Status options and employer strategies is essential for maintaining compliance and supporting foreign national employees through transitions. By staying informed and working proactively with legal counsel, HR professionals can help mitigate risks and streamline the hiring process for talented global professionals.

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Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a WayLit-affiliated attorney or another qualified professional.