Laid-Off As An H1B Visa Holder? Here’s How To Fix That

Recent layoffs at large American firms have impacted many foreign workers who suddenly have to find new jobs to stay in the United States. Usually, unless their I-94 period of authorized stay is shorter, such laid-off workers are allowed a 60-day grace period to try to find alternate work. Failing to find new work within those 60 days would mean the worker would have to leave the USA and then try to find new American employment from abroad. What can they do?

Possible Change Of Status

One thing such a worker could do if they want to stay longer is to apply to change to B-1/B-2 visitor status. Such an application would need to be filed before their 60-day period of authorized stay expires. A bona fide reason for why more time is needed would have to be provided. Assuming that is done, the current processing time for getting approval for such a change of status request is about a year or longer. While not always certain, this is a strategy that can be undertaken in the right circumstances to buy more time to find and transition to another job. But what visas?

U.S. Options

If a laid-off H1B visa holder won the lottery to get his current visa, the field is open to take another job anywhere where employers are hiring H1B workers. Otherwise H1B applicants will be eligible only for cap-exempt H1B visas (ie. jobs at universities or in non-profits related to universities, or in NGO or government research organizations). Limited H1B1 visas are also open for applicants from Chile and Singapore. Other possibilities are L-1 inter-corporate transfer visas, O-1 extraordinary worker visas, E-3 specialty visas for Australians, TN USMCA professional visas in the case of Canadians or Mexicans, J-1 intern visas, or other options related to their spouse’s U.S. immigration status. But suppose there are no such jobs available.

In the U.S. the E-2 visa comes to mind as a possible option. Treaty Investor E-2 work visas are for citizens of countries with which the United States has an investment treaty. In such cases an application can be made within the U.S. to change to E-2 status if a suitable investment is made in a start-up or a purchase of a business. Premium processing can be employed to get a decision from the USCIS within two weeks. Even in the case of nationals from countries like India and China that do not have an investment treaty with the U.S., such nationals can qualify to undertake a start-up business in the U.S. by first investing in one of the the citizenship-by-investment programs, such as Grenada in the Carribbean for example, and then later applying for a five-year U.S. E-2 work visa. That can be implemented in less than six months with a total investment of say, about $ 350,000 U.S. While more complicated than just finding a U.S. job, it can be done through self-employment without an employer.

Some Good Canadian Options

Significant Benefit Entrepreneurs to Canada

The Significant Benefit Entrepreneur Work Permit was created under Canada’s International Mobility Program for foreign entrepreneurs to get work permits as self-employed individuals. The initial work permit is usually issued for two years and can be extended. The work permit is suitable for self-employed individuals that would like to start a business or buy a business in Canada, or individuals selected under any of the Provincial Nominee entrepreneur streams.

Applicants must establish they own at least a majority share of the business; have relevant experience and can operate the business; have sufficient money to run the business; show that the plan is feasible; have taken significant steps to implement their business plan; and most importantly, show that the business will generate significant economic, social or cultural benefit to Canada. Processing can sometimes even be undertaken right at a port of entry if the applicant is from a visa-free country. Otherwise a consular application must be made.

Global Talent Stream in Canada

The Canadian Global Talent Stream seeks to attract foreign nationals who work in the tech and IT sectors as part of Canada’s Temporary Foreign Worker Program. To qualify, the foreign worker must locate an employer in Canada who must first obtain a neutral or positive Labor Market Impact Assessment from Employment and Social Development Canada. The stream was created to facilitate the growth of Canada’s tech industry and by and large tries to process applications within two weeks from filing. Most applications in this category involve salaries of over $ 80,000 Canadian per year. Entry can be made at a port of entry if the applicant is from a visa-free country, otherwise a consular application is required.

Express Entry in Canada

Express Entry is an application management system that Immigration, Refugees, and Citizenship Canada (IRCC) employs to manage the Canadian Federal Skilled Worker Program, the Federal Skilled Trades Program, and the Canadian Experience Class Program. Candidates self-assess and then post their profiles on the IRCC website. IRCC then assigns a Comprehensive Ranking System (CRS) score based on their work experience, education, language abilities, and other human capital factors. The higher the numerical score, the more likely the applicants are to receive an invitation to apply (ITA) for permanent residence. Once a candidate receives an ITA, they have 60 days to send their final application. IRCC has a processing standard of six months for all new applications although it can take up to say a year to approve an application. The most likely candidates to succeed are those who are under 40, who score high in an English or French language test, have at least one year of postgraduate skilled employment, and who have at least a Master’s degree. Entry can be made at a port of entry if the applicant is from a visa-free country, otherwise a consular application is required.

Other Options

There are also prospects to get a Canadian work permit right at the port of entry for foreign nationals working for a multinational company with a branch in Canada to take up work there, and a Mexican professional who gets a job offer under the Canada-US-Mexico free trade Agreement (CUSMA). The same is true for certain applicants under the Canada-European Union Comprehensive Economic and Trade Agreement (CETA) and the Comprehensive and Progressive Trans-Pacific Partnership agreement (CPTPP). Also, near-shoring is possible, using the Global Talent Stream to export foreign workers from the U.S. to Canada, provided the employment and the company activity is sufficiently rooted in Canada.

In short, creativity and dedication need to be employed to find solutions for H1B workers to deal with the current challenges they face. While not all H1B workers can be helped in these ways, many can if sufficient effort is made.