Dear Sophie: How can we support our immigrant colleagues during layoffs?

Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

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Borders can’t stop germs. But borders will also never be able to stop ideas, or love, either.

Last night Trump tweeted that he will temporarily suspend immigration. I’m still waiting to review the text of the executive order, which at the time of this late writing, hasn’t been published yet. I expect significant litigation, as only Congress has the authority to cease immigration pursuant to the Immigration and Nationality Act. I’m hopeful that a court will issue a temporary restraining order in the near future.

We’re monitoring the situation closely and will continue to provide updates. Stay tuned, and be well. We all share this one Earth. We’ve got this. We’ll figure things out, one step at a time. Together.

Big hugs,
S

Dear Sophie:

We’ve decided to wind down our existing startup to move on to a new biotech opportunity. A co-founder is on H-1B and we sponsored an employee for a TN. How can we support both of them to stay in the U.S.?

— Winding Down in Woodside

Dear Winding Down,

It sounds like you’re handling the transition with grace. Every new experience teaches us what we want and what we don’t want, so I’m excited for all of you that you’ll be freeing yourselves to pursue new ideas. The fact that you care so much about your team makes you a strong leader. Your international colleagues will greatly appreciate your support as everybody transitions to new roles and new adventures.

When you lay off employees on an H-1B or TN visa, they will have 60 days or the visa end date plus 10 days — whichever is shorter — to find a comparable job or another visa to remain in the U.S. Otherwise, they must return to their home country. If they depart the U.S., they won’t be able to return until the travel restrictions and border closures end and U.S. consulates and embassies reopen for routine visa and green-card services. The 60-day grace period applies to E-1, E-2, E-3, H-1B1, L-1 and O-1 visa holders as well.

USCIS officials consider COVID-19 a “special circumstance” like hurricanes and other natural disasters, so if it came to it, they could request additional extensions for future sponsorship filings. However, be aware that so far USCIS has refused a request from the American Immigration Lawyers Association (AILA) to suspend all immigrant deadlines and visa expirations during the COVID-19 pandemic. Earlier this month, AILA filed a lawsuit in federal court calling for the immediate suspension of deadlines and expirations. A decision in this case might come too late to support your team in the immediate circumstances.

Make sure they understand that there’s a really important consequence if somebody accrues “unlawful presence” for 180 days or more. In immigration law this is called the “3 year/10 year bar,” and it basically means banishment for three or 10 years.

Here’s how it works: An individual who has been in the U.S. without permission for more than 180 days but less than one year who then departs the U.S. will be barred for three years from re-entering the U.S. An individual who accrues one year or more of unlawful presence and then departs will be barred for 10 years. There’s a waiver, but it’s hard to get and the person needs a spouse or parent who has a green card or a citizen to qualify, and it’s only approved if the government determines this qualifying relative would suffer “extreme hardship” if the person can’t return to the U.S. It’s a tough penalty, so it’s not worth risking.

There are requirements for companies during layoffs as well. Normally, your startup must immediately notify USCIS if the person is no longer employed. You also need to talk to your attorney to see if an amendment is necessary if you’re thinking about cutting peoples’ hours or reducing pay.

Is it possible to support your team by notifying them now of a delayed layoff date and continuing to employ them in the interim? This can give them more time to find new jobs. Even though there’s so much doom and gloom in the media, there are lots of companies that are hiring right now.

If your startup sponsored your co-founder for a green card and the I-485 adjustment of status application has been pending for less than 180 days, that person has another great benefit, AC21 portability. Your co-founder might be able to transition to a new employer in a “same or similar role” on their work permit and keep most of what has already been done in the green card process.

If your H-1B co-founder is unable to find a new employer willing to take up the H-1B and green card sponsorship, your co-founder should talk to an attorney to also consider the possibility of self-petitioning for either a self-petitioning green card such as the EB-1A for individuals of extraordinary ability or EB-2 NIW National Interest Waiver.

Now, for your TN colleague, it’s fairly straightforward. Unlike the H-1B, a TN visa doesn’t require an employer to get a certified LCA from the Labor Department. Talk to your attorney, but you may have more leeway in changing aspects of the TN job position.

If either of your international employees is unable to secure a similar job with an employer willing to sponsor a work visa, share the following options:

• To explore startup opportunities (but not work), they could apply for a change of status to B-1 for business, which is initially valid for up to six months and can be renewed.
• To seek medical treatment or visit family, they can request B-2 status.
• If either is married and their spouse has a separate work visa, they can apply for a change of status to a dependent of the spouses’ H-1B or TN, or an E-3, J-1, or O-1 status.
• It’s also possible to request a change of status to F-1 if you can obtain an I-20 from an educational institution. Bridge applications may be required, so it’s good to make sure you have proper legal support for this and all of these options.

Wishing you the best in all your future endeavors!

Sophie

Have a question? Ask it here; we reserve the right to edit your submission for clarity and or space. The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer here. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms; if you’d like to be a guest, she’s accepting applications!