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Tech Careers / Tech Culture

Tech Works: Layoffs, a Ticking Time Bomb for Your H-1B Visa

If you're an immigrant on a work visa, there's no time to mourn after losing your job. In her latest Tech Works column, Jennifer Riggins explores your options.
Mar 10th, 2023 5:09am by
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Editor’s note: Tech Works is a new monthly column by longtime New Stack contributor Jennifer Riggins that explores workplace conditions, management ideas, career development and the tech job market as it affects the people who build and run the software the world relies on. We welcome your feedback, and ideas for future columns.

One of the most popular pieces of advice for those facing tech layoffs is just to take a break. Mourn. It’ll help you perform better in your next interview.

The advice reeks of privilege. Yes, most engineers have the financial means to take a pause, but we don’t know everyone’s needs.

For some, however, getting locked out of Slack resets the timer before their life explodes. Because if you’re on an H-1B skilled worker visa to the U.S., you have 60 days to find a new job — that’s willing to pay the roughly $3,000 fee and sponsor your visa.

And it’s not really 60 days, since it takes your new company’s lawyers a few weeks to process the visa application. Let’s not even talk about visa holders whose jobs got cut right before the holidays. Or may have kids in school, a mortgage or car payments. Plus, lots of companies have frozen hiring.

Not all tech layoffs land the same way. And for those relying on a visa, you don’t have time to breathe. It’s now or maybe never on your chance at a green card. That’s why we spoke to the co-authors of the upcoming “Unshackled: A Practical Guide for Highly Skilled Immigrants to Thrive in the United States,” Soundarya Balasubramani and Sameer Khedekar, to clarify what to do when your company makes headlines and you’re suddenly out of a job in a tight market.

What Are Your Options?

When you’re let go, you’ve got 60 days to get a new visa, change your immigration status or leave the country — or risk accruing unlawful days in the States. And even this grace period is technically discretionary. “They always reserve the right not to extend it, but I’ve never seen them enforce it on any type of work visa,” Khedekar, an immigration attorney, told The New Stack.

The H-1B visa is intentionally a temporary visa that requires employer sponsorship, “However, it just became the pathway that immigrants came to the States and pursue citizenship,” said Balasubramani, a content marketer.

You can switch employers, but you can’t be without an employer for more than 60 days — which is only a bit better than the mere 10 days it was before 2017. “It’s such a precarious position,” she said. “It’s temporary.”

It’s super rare that the government will deny the petition, she continued, though it does expect you to reply quickly to any request for more information.

Last December, U.S. Citizenship and Immigration Services provided the most recent overview of options for laid-off visa holders, including H-1B.

Ideally, you will find a job in that tight window. If the new employer has filed, but it hasn’t been approved within the 60-day grace period, it’s expected that you start that new gig in the meantime.

“Advice from lawyers is: Assume that you have 60 days,” Balasubramani said. But even if it’s 70 days, she suggested having the new employer apply anyway. This is when the slowness of federal bureaucracy can play in your favor.

Your job under the H-1B visa has to pay at least minimum wage and can even be part-time, but between the application and legal fees, this will set a company back about $6,000, so those types of roles are unlikely.

Other options include that family members of an H-1B visa holder, typically on an H-4 visa, can apply for work authorization, and then you change your status to their dependent. If you are recently unemployed, you can also apply to work at a nonprofit or in academia or do a master’s degree for a year.

Or, you can switch to a tourist visa while looking for a job — but then you cannot work during that time and have to leave the U.S., to re-enter the country as a tourist and then again, to re-enter back on the H-1B. You also always have the option of going to your country of origin while applying for jobs.

Each of these options, when feasible, can buy you more time to find the right new sponsored role. “If you can’t find a job, it’s OK to leave,” Balasubramani advised. “You can come back. Once you’ve been picked from the lottery, you don’t have to apply again. It’s a lot safer to leave.,”

However, she acknowledged, not everyone has the option to go back to their country of origin.

“If I was laid off right now and could not find a job, I’d either go back to university for a year or look for volunteering organizations,” she said. But, she added, she doesn’t have the added challenges of a dependent family or a mortgage to factor in.

These are all only options if you are in the U.S. when you lose your job. There is a subset of people that Khedekar has met who were abroad when they were laid off and had to get tourist visas to get back in to tend to cars and housing. The tourist visa isn’t an option if parents want their kids to continue schooling in the U.S.

How Ex-Employers Can Do Better

The last couple of months of tech layoffs have felt so unnecessary. They are mostly happening at companies still well into the black that had spent the last year or five cannibalizing the market and over-hiring. So as they look to appease investors by cutting back their personnel costs, they should feel at least a moral obligation to do whatever they can to support all laid-off staff, especially those with visas.

Even though your two-month clock is supposed to start on your last day of work, the Department of Labor is usually looking at your last paycheck, so any payment options a sudden ex-employer can give are helpful.

Employers have to send an authorization to the government indicating the last day of employment, but they can also document the date of the last paycheck, Balasubramani noted. For companies that want to do right by their visa-holding employees, it’s ideal to keep people on payroll as long as possible.

Many tech companies offer a “garden leave,” paid time not to work. In cases of severance, receiving payments monthly versus in one lump sum at the start of a laid-off worker’s unemployment could make a big difference.

Right now feels a little more uncertain, though. “Since 2017, it’s been pretty good times economically,” Khedekar said. “Whenever someone was fired, and the company wanted to help them out, employers [could] also issue severance in ‘unproductive employee status’ for whatever period of time.”

However, while the situation hasn’t changed, he said, the advice he and other immigration lawyers are hearing has. Alphabet, Coinbase and Meta — all companies that have had very public layoffs — have come out and said they will do whatever they can to help their employees on the H-1B visa, including placing them on unproductive employees status, continuing to issue them paychecks while they look for new work.

“That’s a problem, technically the immigration [service] will start when they stopped working for the company,” Khedekar said. Immigration lawyers worry that the government will say “We know that you left your employment two months before that,” when that very public layoff and media announcement about assisting immigrants occurred.

The ramifications of making that mistake are huge, he added, “because it’s so public and they are so clear about what they’re doing. We know the immigration service and we’ve seen them use public information against immigrants.” While it’s still likely most government agents will accept the date of your last paycheck, he said, these public layoffs with public dates can make that riskier.

Ultimately, there’s only so much companies can do to help former employees, Khedekar said, because “the way it works legally is the companies hire law firms to do H-1B visas for the employees, but they work for the company [so their lawyers have] no interest to care for the laid-off employees.

“I’ve been trying to help employees of big tech who have nowhere to go because they can’t rely on counsel — that law firm is going to give them really conservative, minimal advice. It’s kind of a half-hearted measure.”

Even companies that are known to have super employee-friendly immigration programs, he said, have their hands tied.

Above All: Don’t Panic

Immigrants, Balasubramani has found, tend to be “very reactive. You don’t really think about your visa until you absolutely have to think about it.”

In this moment of panic, many don’t realize that they do still have options — although she advised they should always seek independent legal counsel. This is why her co-author, Khedekar, founded Immigration Office Hours, an online service for accessing immigration advice.

“It’s so specific to their background, their lives, their circumstances,” he said. “It’s really imperative they talk to an attorney.”

There are also services for these candidates, like the H-1B Recruitment Connect job board.

Don’t forget to look outside the tech industry. As The New Stack has predicted, while Big Tech layoffs are making the headlines, Balasubramani remarked that there are still a lot of technical job vacancies, especially those in the more traditional sectors and in critical roles around green tech, health care and cybersecurity.

Whatever you decide to do, don’t fall for a scam preying on the vulnerable.

“When a company sponsors, the employee never pays for it,” Balasubramani emphasized. She warned, “There are several scam companies that try to prey on people’s emotions — don’t pay companies” to hire you temporarily to keep you in the country. Eventually, she said, the U.S. government will find out.

So while you don’t have time to take a break, do remember to take a breath, and consult those you trust to make the right decision for your circumstances. Good luck with your job hunt!

Tell me what you would like to read about in future installments of Tech Works. I’m on Twitter and LinkedIn.

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