Losing your job while you are on an employment-based visa in the United States can be a stressful situation. This blog will be dedicated to better understanding some of the options and resources that ex-employees should utilize in order to:

A.   Remain in the United States without violating U.S. immigration law and making it harder for their future selves to ever fill out an immigration application or petition on someone else’s behalf.

B.    Effectively manage some of the stress of losing one's job while on a visa in the United States.

C.    Understand the timing/grace periods with respective visas and applications that way which ever option the immigrant chooses to pursue it will logistically make sense.

If You’re Not a Legal Resident

One of the most difficult parts of losing your job in the U.S. when you are not yet a green card holder (legal permanent resident) is that your time is limited in order to figure out what you’re going to do next. For example, if you are on an employment-based visa (E2 or E3) and you get laid off, you might not need to file for an I-539 immediately because you will be in a grace period situation. According to U.S. immigration law, you will be able to remain in the U.S. for a period of 60 days before you are considered in unlawful status.

The problem with the 60-day rule, however, is that it’s simply not enough time to get through the hiring process. This is why the I-539 option can look promising for those who have lost their jobs.

Having a Pending I-140 Application 

The other issue with trying to find a new job and dealing with the timeliness of being able to remain in the U.S. is that if you do find a new employer who is willing to file an I-140 on your behalf, this still does not confer that you will be legally allowed to stay in the U.S. Think about the fact that if you were going through consular processing, having an approved I-140 sent to the NVC does not automatically mean that the foreign applicant can now travel to the U.S. They would still need to wait for visa availability based on their country or origin and category of employment. The same logic applies to domestic candidates who have lost their job.

This is why filing an I-539 can be a better option in order to avoid “falling out of status”. If your extension of stay is granted in the U.S., it will give you a 6 month period of lawful status in the United States. 

Problems with Filing an I-539

However, this does not mean that having an accepted I-539 application will solve all of the immigrants problems. There are still more obstacles to discuss as U.S. immigration law can sometimes be quite complex. First off, you can only file the I-539 if you are in the following employment or student based categories:

  • A (ambassadors, public ministers, career diplomatic or consular officers) and their immediate family members
  • A-3 (attendants, servants, and personal employees of A visa holders) and their own immediate family members
  • B-1 (visitors for business)
  • F-1 academic students admitted to study for a limited time at a public secondary school
  • G (designated principal resident representatives of a foreign government) and their immediate family members
  • G-5 (attendants, servants, and personal employees of foreign government officials) and their immediate family members
  • H-4 (temporary specialty workers’ dependents)
  • K-3 (spouse of U.S. citizen) and K-4 dependents
  • M-1 (vocational students)
  • N (parents and children of certain special immigrants)
  • NATO-7 – Attendants, Servants, Personal Employees of NATO Representatives, Officials, Employees and Immediate Family Members

 (Nolo, 2021)

This is why many who are laid off will apply and switch to a B-1 or B-2 visa and then apply for I-539 with the appropriate documentation. Generally, you will be unable to file for an adjustment of status whilst you have an extension of stay unless you marry a U.S. citizen and have your spouse file an immigrant petition your behalf.

Likewise, your extension of stay will be granted on the basis that you will return to your home country unless you file both an I-539 and an I-765 (work authorization form) at the same time. Check the following USCIS link to see if you are able to file concurrently with your I-539 extension application:  https://www.uscis.gov/forms/all-forms/filing-form-i-765-with-other-forms.

Sources:

https://www.nolo.com/legal-encyclopedia/filling-out-form-i-539-extend-nonimmigrant-visa.html

Keywords
I-539 Immigration