What if the potential hire has been laid off – does that impact the H-1B COE case?

Yes. Normally for an H-1B COE case, we must show that the foreign worker has been maintaining H-1B status. Maintaining H-1B status means that the foreign worker is actively employed by their H-1B sponsoring employer. To prove that the foreign worker has been maintaining H-1B status, USCIS requires copies of the individual’s most recent paystubs as part of the H-1B COE submission. If the foreign worker has been laid off, they are no longer maintaining their H-1B status which could impact whether an H-1B COE case would be approved.

It is important to know when the foreign worker was laid off. We may be able to request that the USCIS use its discretion and overlook the period of non-maintenance of status. The USCIS may be willing to use its discretion to approve the H-1B COE case if the period of non-maintenance of status is ten days or less. If the foreign worker has been laid off for a longer period of time, we may discuss other options for processing the H-1B petition such as filing the case for consular notification. These options may require the foreign worker to depart the U.S. and re-enter in order to activate their H-1B status.