Employees walk past a lighted Twitter logo as they leave the company’s headquarters in San Francisco … [+]
Twitter is in the news again, this time for layoffs. Stripe has also announced that it will reduce its workforce. It is unfortunate when someone loses their job, but for companies and individuals, a layoff becomes more complicated when the employee is an H-1B visa holder.
There are approximately 625 to 670 Twitter employees in H-1B status, or about 8% of the company’s 7,500 employees, based on a National Foundation for American Policy analysis of US Citizenship and Immigration Services (USCIS) data. (This is an estimate since Twitter has not published a precise number.)
On November 3, 2022, Stripe CEO Patrick Collison sent an email to Stripe employees that read: “Today we’re announcing the hardest change we’ve had to make at Stripe to date. We’re reducing the size of our team by around 14% and saying goodbye to many talented Stripes in the process.”
Stripe has approximately 300 to 350 employees in H-1B status, based on an NFAP analysis of USCIS data. That represents about 4% to 5% of its workforce.
It is not surprising that technology companies like Stripe and Twitter employ H-1B visa holders. An H-1B visa is often the only practical way to hire a foreign national long term, particularly a recent international student. At US universities, international students account for 74% of the full-time graduate students in electrical engineering and 72% in computer and information sciences. Elon Musk, who recently acquired Twitter, came to America as an international student and later obtained an H-1B visa so he could work in the United States.
Employer Considerations When Laying Off An H-1B Visa Holder: Employers should be aware that laying off employees in H-1B status carries additional rules to follow. “When an employer lays off an H-1B visa holder, three obligations are triggered,” said William Stock of Klasko Immigration Law Partners in an interview via email. “First, USCIS regulations require the employer to notify USCIS of any ‘material change’ in the terms or conditions of the H-1B’s employment, and a termination or layoff is such a ‘material change.’ Second, the statute also requires employers to pay the ‘reasonable costs of return transportation’ to H-1B workers terminated before the end date of their H-1B authorized stay. Third, the Department of Labor regulations require an employer to continue paying the H-1B employee’s salary until the employer notifies the H-1B worker of the termination and complies with the first two obligations.”
Kevin Miner, a partner with Fragomen, notes additional considerations for employers. “Whenever there is an involuntary termination, the employer has to offer to pay the one-way air transportation for the worker to their home country or last country of permanent residence,” said Miner in an interview. “It is particularly important for employers to ensure that these requirements are fulfilled because they can be subject to significant fines and back wage awards if this is not done correctly. Moreover, terminations that come from a layoff can sometimes result in a terminated employee being unhappy with their former employer and thus more likely to file a complaint with the government regarding immigration compliance. Employers need to understand these additional risks and ensure they are carefully complying with immigration rules.”
Additional Risks For An H-1B Visa Holder Who Is Laid Off: Employees in H-1B status may face significant consequences when laid off from a job. “Once employment is terminated, an H-1B visa holder enters a 60-day grace period during which he or she needs to leave the US, seek a change of status or have another employer file an H-1B petition or other immigration petition on on their behalf,” said Miner. “If they don’t do so within the 60 days, they are then viewed as violating their immigration status. In a situation with a layoff, this unfortunately puts the H-1B worker in a difficult position from an immigration standpoint, as finding another job is important not just because of income needs but also to maintain immigration status.
“H-1B workers benefit from the fact that they have already been counted against the annual H-1B quota, so it is somewhat easier for another employer to sponsor them. Employees who hold other kinds of immigration status, like an L-1 intracompany transfer visa, often have a more difficult time addressing their immigration situation than someone who has H-1B status because it is a bit easier for another employer to file a petition for them in a short amount of time.”
“An H-1B visa holder is only considered to be maintaining valid H-1B status while working for their H-1B petitioner, so is no longer in valid status as of termination,” said Stock. “A USCIS regulation from 2017, however, gives H-1B visa holders a 60-day ‘grace period’ after termination. During that time, the H-1B worker is not in valid H-1B status but can find another H-1B petitioner and transfer their H-1B status (or can find another status to change to). As long as a new employer files a new H-1B petition for the visa holder within 60 days of the prior petitioner’s termination, USCIS will routinely grant the change of employer petition even though there was a gap in the employee’s H-1B status.”
A Layoff Could Affect Employers Filing Labor Certification (PERM) Applications For Employees: “Department of Labor regulations restrict employers from filing applications for permanent labor certification on behalf of any position where there was a layoff of similar US workers within the previous 180 days,” said Stock. “As a practical matter, the Department will frequently audit cases that are already pending when a layoff is announced to ensure that qualified US workers were not laid off. During the 180 days after a layoff, before filing any application for permanent labor certification, the employer must notify any laid-off US workers and consider whether they meet the minimum qualifications for the position, and can only file the case if qualified US workers are not interested in the position.”
The Impact Of Layoffs For Individuals Waiting In Queue For Their Green Card: A layoff can bring additional difficulties for individuals waiting for their employment-based green card. “Once someone gets to the second stage of the green card process—the I-140 immigrant petition—and that petition has been approved for at least six months, they retain their priority date, which is their place in line for the green card backlog , even if they lose their job,” said Miner. “This can be particularly important to people from backlogged countries such as India and China where the wait in the backlog is exceptionally long. However, the green card process is based on someone ultimately taking the job they were sponsored for, so if someone loses their job while in the green card process, they often will need to repeat the first couple of steps of the process with a new employer .
“Once the last stage of the green card process, called adjustment of status, has been pending for six months, they have more flexibility to change to a different employer without needing to start the process over again from the beginning. For those individuals, finding a new employer quickly becomes important for the green card process because they need to be able to show they have a job offer to finish the green card process.”
“For H-1B visa holders who have approved immigrant petitions but have not yet filed applications for adjustment of status due to the annual green card quotas, a layoff does not affect their “priority date” (their place in line) for the quota, said Stock. “An H-1B visa holder would not be able to make an application for adjustment of status, however, unless they have a job offer from the petitioning employer in the same job for which the immigrant petition is approved. An H-1B visa holder who transfers to a new employer would need that employer to file a new labor certification and immigrant petition on their behalf. That new immigrant petition would have the same priority date as the first immigrant petition filed by earlier employers.
“For H-1B visa holders who have approved immigrant petitions and were not able to file applications for adjustment of status due to annual green card quotas, there is a regulation allowing that H-1B worker and any spouse or child to request employment authorization for ‘compelling circumstances,’ which might exist if the worker is laid off. It would be preferable, however, for the H-1B visa holder to extend their H-1B status with a new employer rather than ending their H-1B status by asking for employment authorization instead.”
Stock notes for H-1B visa holders who were able to file applications for adjustment of status before a layoff, their application for permanent residence will remain pending and can be approved if the H-1B visa holder obtains another job in the “same or a similar” occupation.
Layoffs can be gut-wrenching experiences for workers. The experience becomes more complicated when immigration status is involved. The layoffs at Twitter and Stripe are likely to be no exception.
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