The New Reality After an H-1B Layoff

If you're on an H-1B and you get laid off, you have 60 days to find a new employer. That USED to feel manageable. It doesn't anymore.

Here's what I used to do for clients in this situation: if they couldn't find a new employer in time, I would help them change to tourist status so they could stay in the US and continue their job search. They weren't allowed to work, but they could stay in the United States and continue to interview with potential employers.

It worked. Cases got approved. People found new jobs, transferred back to H-1B status, and never had to leave the country.

I just had one of those changes of status denied.

The government's reasoning: the person's intention was to stay in the U.S. and continue looking for a job.

My response in the filing was: yes, that's a valid use of tourist status. Being present for interviews is permitted.

The government disagreed. They denied the change of status to B-2.

Now this person is out of status with a pending H-1B case. And here's where it gets worse.

Because of the new $100,000 fee that applies to certain H-1B petitions filed from outside the United States, the stakes are completely different than they used to be.

If this person's pending H-1B case isn't approved for a change of status within the US, and the government says they have to leave and come back through consular processing, they could become subject to that fee. No company is going to pay that for anyone.

It used to be that if you couldn't find a job within 60 days, it wasn't the end of the world. You had options. You could change to tourist status. You could leave the United States and come back later when you had found a new job. There was flexibility.

That flexibility has all but disappeared.

I have another client right now in this exact situation. I explained the risk. They said they want to move forward anyway because there's no other option.

And that's the problem. There really isn't another option.

My advice to anyone on an H-1B right now: if you get laid off, 60 days is not a lot of time. If there's any employer out there willing to sponsor you for a relevant position, consider taking the job. Because the consequences of not finding something in time are much more serious than they used to be.