Important Updates from USCIS for Nonimmigrant Workers Who Were Recently Laid Off

On March 10, 2023, U.S. Citizenship & Immigration Services (USCIS) provided updated information for nonimmigrant workers who were recently laid off. Some of the key updates are described below:

If you timely file Form I-539 to change your status and an employer subsequently files Form I-129 to sponsor you for a work visa using premium processing, USCIS has now stated they “will generally process the pending I-539 and I-129 together during the premium processing timeframe and issue concurrent decisions.” USCIS goes on to state that the applicant does not need to make any formal request for the I-539 to be prioritized. It is significant that USCIS has stated they will prioritize the I-539 and process it concurrently with the I-129, as current processing times for I-539s are well over one year and the I-129 cannot be approved until the I-539 is approved. Previously, this could put workers into a difficult position, as USCIS would issue Requests for Evidence asking for proof of status and the worker could not provide this until the I-539 was approved. It is important to note that USCIS does not guarantee that the I-539 will be concurrently adjudicated with the I-129 but it is a very positive sign that they have indicated they will generally process these forms together to prevent workers remaining in limbo while they wait for the I-539 to be approved so that the I-129 can be approved.

USCIS also clarified that workers who have pending or approved I-140 petitions are still eligible to file a change of status to B-1 or B-2. This is an important point for laid off workers who were being sponsored for a green card by their employer as they may worry that the I-140 immigrant petition would impact their ability to qualify for B-1 or B-2 status, which requires that the applicant demonstrate nonimmigrant intent. As long as the worker maintains an intent to depart after the period of stay in B-1 or B-2 status and has a foreign residence they do not intend to abandon, it is possible to apply for a change of status to B-1 or B-2.

The USCIS update also clarified that laid off workers are permitted to look for new jobs and attend job interviews while in B-1 and B-2 status. The regulations do not specifically list these activities as permissible B-1 and B-2 activities so this is a helpful clarification to give workers peace of mind that they are not violating their status if they apply for a change of status to B-1 or B-2 and they are job hunting and attending interviews during that time.

If you are a foreign worker and have been laid off from your job in the U.S. it is important to proactively plan your next steps to make sure you do not overstay your status. There are many options available, and it is a good idea to speak with an immigration attorney to understand what options apply to your specific situation.