The economy has not left anyone untouched by its dramatic impact. Stories of banking crises, bailouts, rising unemployment, plummeting securities and housing prices, rising inflation, rising gas and food prices, recession, depression, and laid off of foreign employees in the US abound.

Among the many worries of foreign national workers in the US on H-1B, the most worrisome these days is a layoff. This problem is often compounded by undefined terms and often contradictory interpretations of the immigration laws. So what should you do in case of a layoff? First of all you need to know the law really says. Let’s start by exploring one of the common myths attached to the H-1B category.

MYTH: An H-1B worker who is laid off has ten days to either apply for a new job or leave the US.

REALITY: This is absolutely untrue. The confusion regarding the ‘ten day’ rule probably stems from the regulations at 8 C.F.R. §214.2(h)(13)(I)(A). This regulation, which governs the time period to be granted to a person entering the US on H-1B, states:

"A beneficiary shall be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. The beneficiary may not work except during the validity period of the petition."

This regulation does not apply to those who have been laid off and are changing their employers or their nonimmigrant status. Various USCIS officials over the years have opined the H-1B worker must submit an application for a change of employers within 30 days or 60 days of being laid off. However, these statements are merely opinions and do not have the force of law.

After a lay off: The following are suggested steps you should take in the event you are laid off:

1. Maintain Legal Status: You must show a good faith effort to stay in legal status in the country. You can do this in a couple of ways. If your H-1B status was not revoked when you were laid off you can find an new employer and file a change of employer petition. If you cannot find a new position and get a change of employer petition filed within thirty (30)days you should apply for a change of status to B-1/B-2 visitor status. You will need a copy of your itinerary showing intent to leave the US at the end of the requested B-1/B-2 status. You will also need financial proof, usually in the form of a bank statement, showing that you have enough money to stay in the US. If your former employer revoked your H-1B at the time you were laid off you need to file for a change of status to B-1/B-2 immediately.
   
2. Job Search: You should begin your job search as soon as you are laid off, even before you file for a change of status to visitor status. As you know, your job search will become your full time job until you find a new employer.

   NOTE: The amount of time that an H-1B worker may stay in the US after being laid off or terminated is not defined in the law or the regulations.

3. Application for Change of Status: Once obtain a new offer of employment; you should have the new employer submit an application to change H-1B employers as soon as possible.

Under AC-21, a worker may begin employment with the new employer as soon as the H-1B transfer petition is submitted to the USCIS. When the USCIS makes their decision on the new petition they have three choices. First, they can deny the petition, in which case you will have to depart from the US. Second, the H-1B transfer request will be approved. Or third, if the USCIS decides that too much time has elapsed since you were laid off or terminated, they will approve the H-1B petition and deny the application to change employers in the US. In this final scenario, after the Notice of Approval has been issued, you may depart the US and apply for a new H-1B visa abroad. If your old H-1B visa has not expired, you may be able to simply travel outside the US and return using your original H-1B visa and the original Notice of Approval (Form I-797) for your newly-approved H-1B petition.

What happens if the laid off H-1B worker is a beneficiary of an approved employment based immigrant visa petition?

If the laid off H-1B worker is the beneficiary of an approved employment based immigrant visa petition, depending on where the individual is in the process, one of two things can happen. If the foreign national had not filed for adjustment of status, or if it has been less than 180 days since filing for adjustment of status, he or she should have his or her new employer submit a new labor certification and a new EB visa petition on his or her behalf. He or she may be able to use his or her original priority date.

If the application of adjustment of status had been pending for over 180 days prior to the lay off, the foreign national worker may change jobs without jeopardizing his or her green card application, as long as the new job is in the same or a similar occupation.

If the laid-off H-1B worker has an EAD (Employment Authorization Document), he or she may immediately start working for a new employer using that EAD. The EAD is not employer specific; therefore losing your job does not invalidate it. Only the denial or termination of the application for adjustment of status does this. Again, depending on the circumstances the foreign national may need to have his or her new employer submit a new labor certification and visa petition on their behalf.

In some instances (i.e., where the employer has to file a new labor certification and immigrant visa petition, and the adjustment of status application may be denied before the new petition can be approved) it may be necessary for the foreign national to have his or her new employer file a new H-1B petition for him even though he is currently working using an EAD. If the H-1B visa for the previous employer has not expired, and there is an issue with the change of status, the foreign national may be able to simply travel outside the US and return using this original H-1B visa and his new original H-1B Notice of Approval (Form I-797).

Conclusion: The one thing you must remember if you are in H-1B status and you get laid off – don’t panic. You have a visa that is still valid and you are within your period of authorized stay so at this point you are NOT accruing unlawful presence, even though you fall out of status when you are no longer working for your H-1B sponsor. “Unlawful presence” is different from “out of status.” Unlawful presence means that you will not be allowed back into the US for many years. Specifically, 180 days to 365 days of unlawful presence means that you will be barred from the US for three years should you leave and attempt to return.

Unlawful presence of over a year results in a 10 year bar to reentry should you leave the United States. The date on your I-94 rules the question of “unlawful presence” for purposes of the 3 and 10 year bars. If you still have time on your I-94 then you are not accruing unlawful presence until that date has passed.

This gives you time to look for new employment, if you don’t find new employment quickly you always have the option of filing for a change of status to that of a B-1/B-2 visitor, giving you additional time. You also have options if you are the beneficiary of an approved immigrant petition. If you have questions about what steps you should take in your particular situation, consult a competent immigration attorney. They will be able to guide you through the process.

The above article is brought to you by "VisaPro.com". VisaPro’s US Immigration Lawyer Services include K-1 Visa, K-3, Adjustment of Status, Green Card, and over 100 Immigration Services. The information in this article is not intended to be legal advice.

If you have questions specific to your case, we suggest that you consult with the experienced immigration attorneys at http://consultattorney.visapro.com

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