My company has communicated that it is going to do a massive layoff 50% of our IT dept in 2 months from now, in June 2020 as phase 1 and Dec 2020 phase2.
Currently, both I and my spouse are on H1B visas and have approved I-140s. Since there is a 60% chance that I might get laid off here in June 2020, here are my options regarding maintaining my legal status, as I continue to do my job search.
Be proactive now and by May 1st, 2020, apply for a change of status with USCIS for H4 & H4 EAD petitions simultaneously, using my spouse’s old employer I-140 (hopefully not revoked), as it could take at least 4 months for USCIS to process, so it would probably be Sep 2020 before I get to know a decision on these petitions.
If I am not in phase 1 layoff list, which will complete by June 30, 2020, then I plan to file withdrawal for my H4 & H4EAD petitions in July 2020, as I understand that per the ‘last action rule’, I can be on only 1 status (H1B or H4/H4EAD) at any given time and so it would impact my current H1B status and associated approved I140 with my current employer.
But if H4 and/or H4 EAD get approved separately or simultaneously, earlier than June 30th, 2020, then my current H1B will end, since new H4 or H4EAD would become effective and so my job and approved I-140/priority date could be lost.
Is it wise to file early now or am I over-preparing? Could you advise if you see any other risks or concerns that you see with the above proactive approach?
I do not see any issue with your approach.
I think it is wise to file H4 and H4 EAD if you are anticipating lay off soon. You can keep working on H4 EAD if it gets approved first.
Your own i140 should stay valid too. Unless you are laid off before 180 days of i140 approval, you are fine to use i140 for future h1B or Green card processing for yourself.
Why do you think you will lose your i140 though?
If you stay with your consulting company, they have to run their payroll regardless of their job.
To run there payroll they need to keep deposit in there company account which is illegal but they have no option.
With an approved I-140 and in case of layoff, would you still need to find a job in the same profession? for example, if I am an accountant and if I lose my job, can I apply for tech job (or anything outside of accounting) if I can find an employer to stay in US and when things get back to normal (whenever they do), could I go back to my original profession (assuming I can find another employer)
Yes, the job should be in similar role.
Anil - Thanks a lot for your prompt reply.
In the event , that i am not in the June lay off list, I plan to withdraw my H4 and H4EAD petitions.
But if I apply now, my concern/risk is , if for whatever miracle reason, if my H4 petition gets approved first within the next 2 months , while my H4EAD petition might still be in process, then the last action H4 will take precedence over my current H1B and hence my current employer won’t let me work in my job as H1B not valid any more and so I will loose associated I140 (priority date 2013) with the company…that’s my concern
Offcourse that’s a risk and you have to decide on it. You cannot have your cake and avoid the risk too with USCIS.
Unfortunately, that’s how USCIS works.
I am a bit confused as to why do you think you will lose associated i140 - ptiority date of 2013 ?
I am full time employee with my current client that is planning to do the layoff in June .So If i proactively apply in May 2020 itself for H4 and H4EAD , and if accidentally H4 gets approved first while H4EAD is still pending , then i am risking loosing my job with my employer. So therefore entire GC process will have have to start over with new employer.
Do you know that your old Employer can still file your green card as and when PD date is current even if they lay you off now?
I140 stays valid irrespective of what happens to your H1B job.
I have been informed by my employer that I will be terminated by mid-May. I am on H1B(with valid i140, priority date 2017). Though I have checked with various companies regarding the options of H1B transfer, most of them said they have stopped hiring process because of Covid. My current visa is valid till 2022. Can you suggest a few possible options for me(going back to India and apply later under Cap exempt or continuing here for another 60 days and trying for jobs.). Thank you!
You can stay in US upto 60 days to try and get a new H1B job.
If the travel is banned even after 60 days, you should file B2 COS to stay legally in US.
Can you please confirm what is the employer name