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In times of workforce reductions, HR professionals face the additional complexity of managing the unique immigration implications for foreign national employees. These employees not only experience the standard emotional and financial challenges of job loss but also face time-sensitive immigration concerns that require immediate attention.
This guide will help HR professionals understand how layoffs impact various visa statuses (H-1B, L-1A/B, TN), manage compliance, and provide information you can share with affected employees to help them navigate their options.
H-1B Layoffs Compliance: Critical Timeline and Employer Obligations
Immediate Impact on Status
When an H-1B employee is terminated, their legal status in the U.S. is affected immediately. USCIS considers the employee "out of status" as of their last day of actual physical employment at the job site—not the last day of payroll or any severance period.
HR Action Item: Clearly communicate the employment end date to affected employees, as this is the date that triggers immigration timelines.
Employer Obligations
If your company terminates an H-1B employee before their petition expiration date, and the employee decides to leave the U.S., your company is legally required to pay for reasonable transportation costs for the employee to return to their country of residence.
HR Action Item: Include return transportation costs in your offboarding budget for H-1B employees and make sure this benefit is clearly communicated to affected employees.
The 60-Day Grace Period
Since January 2017, H-1B employees (and those in E-1, E-2, E-3, H-1B1, L-1, O-1, or TN classifications) have a discretionary 60-day grace period after employment ends. During this time, they are considered to be maintaining status for the purpose of filing for a change or extension of status.
Information to Share with Employees: Within this 60-day window, terminated employees have several options:
Find a new H-1B employer: Another employer can file a petition to sponsor their H-1B status
Change to another status: They can file to change to B-1/B-2 visitor status, F-1 student status, or dependent status (such as H-4, L-2, etc.)
Prepare to depart the U.S.: If other options aren't viable, they should plan to leave before the grace period expires
Supporting H-1B Employees Through Layoffs and Transition
H-1B Portability Information
Under the American Competitiveness in the Twenty-first Century Act (AC21), H-1B workers may begin working for a new employer once USCIS receives the new employer's H-1B petition, provided they haven't worked without authorization.
Information to Share with Employees: The receipt notice from USCIS is sufficient evidence to begin employment with the new company. However, if too much time elapses between jobs (typically more than 60 days), USCIS may deny the "extension" portion of the petition, requiring the employee to leave and re-enter the U.S. with the new approval notice.
B-1/B-2 Status as a Transition Strategy
For employees who haven't secured new employment within 60 days, changing to B-1/B-2 visitor status can provide additional time in the U.S. while continuing their job search.
Information to Share with Employees: When filing Form I-539 for B-1/B-2 status, they must:
Explain the specific purpose for remaining in the U.S.
Specify the amount of time needed (typically up to six months)
Demonstrate sufficient financial resources to support themselves without working
Show ties to their home country
Provide evidence of current valid status
While this application is pending, they cannot work or travel internationally, but can legally remain in the U.S.
Impact on Family Members
Dependent visa holders (H-4 spouses and children) lose their status when the primary visa holder loses their status. They must also file for a change of status to remain legally in the U.S.
HR Action Item: Remind employees that applications for dependents should be filed concurrently with the principal's application to maintain legal status for the entire family.
Other Visa Classifications
L-1 and TN Visa Holders
For L-1 and TN employees, the effects of termination are similar to H-1B, but with two key differences:
The company is not required to provide return transportation to their home country
Without previous H-1B status, they must wait for approval of a new employment petition before starting work with another employer
HR Action Item: Clearly differentiate between visa types in your communications, as benefits and requirements vary.
F-1 Practical Training Status
Employees on F-1 Practical Training (either Curricular or Optional) do not go out of status immediately if terminated. They may remain in the U.S. for the duration of their authorized practical training plus 60 days and can accept employment at another company during this period.
Impact on Green Card Processes
Pending Labor Certification (PERM)
If an employee with a pending labor certification is laid off, they can no longer obtain permanent residency through that application. A new employer would need to restart the process.
HR Action Item: When planning layoffs, consider the impact on those in the middle of the permanent residency process, as termination effectively ends years of progress toward their green card.
Pending or Approved I-140 Petitions
The impact depends on the type of petition:
Family-based petitions (I-130): Generally not affected by employment changes
Employer-sponsored petitions (I-140): Since most I-140 petitions are employer-filed, termination means losing the benefit of the petition, except for self-petitioned extraordinary ability or national interest waiver cases
Pending Adjustment of Status (I-485)
If an employee's I-485 has been pending for at least 180 days, AC21 legislation may allow them to change employers while maintaining their adjustment application, provided:
They continue working in the "same or similar occupation"
The underlying I-140 petition has been approved
HR Action Item: For employees with pending I-485 applications, provide documentation about their current position that can help them demonstrate job similarity with future employers.
Creating a Supportive Offboarding Process
Documentation Support
Provide terminated employees with appropriate documentation:
Specific employment end date (crucial for calculating the 60-day grace period)
Summary of work history and job duties (helpful for future employment and green card portability)
Contact information for HR staff who can answer questions after termination
Information Resources
Create a resource packet for foreign national employees that includes:
Timeline of immigration actions needed after termination
Links to USCIS forms (I-539 for change of status, etc.)
Information about the American Immigration Lawyers Association (www.aila.org) for finding qualified legal help
Exit Interviews
Conduct specialized exit interviews for visa holders to:
Explain immigration implications of termination
Review available company support
Address immediate questions and concerns
Key Takeaways for HR Professionals
Understand visa-specific requirements: Different visa classifications have different rules and employer obligations during termination.
Communicate clearly and promptly: Precise information about employment end dates is critical for immigration planning.
Provide appropriate documentation: Support departing employees with the documentation they'll need for future immigration processes.
Consider immigration impact in layoff decisions: When possible, factor in immigration status and green card progress when making difficult reduction decisions.
Encourage professional guidance: Immigration regulations change frequently. Always recommend that employees consult with a qualified immigration attorney for personalized advice.
Note: This document provides general information and should not be considered legal advice. Immigration policies change frequently, and individual circumstances vary. Both employers and employees should consult with qualified immigration counsel regarding specific situations.
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