In these days of uncertain economy, lay-offs are a reality more than ever. For foreign employees working in the US on an H-1B visa, lay-offs mean disruption of their plans, uncertainty in an alien country, and hence are particularly worrisome. This problem is further compounded by undefined terms and often contradictory interpretations of the immigration laws. So what does the law really say about H-1B layoff?
- The amount of time that an H-1B worker may stay in the U.S. after being laid off or terminated is not defined in the law or the regulations.
- Various USCIS officials over the years have opined an 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.
- Some fear that a laid off H-1B worker has only ten days to either apply for a new job or leave the U.S. 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), which governs the time period to be granted to a person entering the U.S. on H-1B. It 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 on H-1B and are changing their employers or their nonimmigrant status.
CASE SCENARIO – LAID OFF ON H-1B
|Que. I was laid off a month ago and my company has informed me that they sent USCIS a letter revoking my H-1B petition. What happens if I find another H-1B employer in the meantime? |
Ans: USCIS generally takes several months to process H-1B revocation notices, which means that, as a practical matter, the revocation of the H-1B petition may not appear in the USCIS system for several months. However, this is merely a general statement and not official USCIS policy. Any laid-off worker should therefore make efforts to find another job as soon as possible and have the new employer sponsor the H-1B employee for a new change of employer H-1B petition at the earliest opportunity. You may encounter problems without the availability of current pay stubs as proof of continuing, valid H-1B status. Because of the circumstances, you may not be able to obtain an H-1B extension of stay and may be required to travel abroad to obtain a new H-1B visa or, at the very least, obtain a new I-94 card with H-1B status upon re-entry to the U.S.
So what to do when you are the victim of an H-1B layoff?
Here are some suggestions:
What if you are a beneficiary of an approved employment based immigrant visa petition?
- Don’t Panic
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.” It is only in certain cases of “unlawful presence” that you will not be allowed back into the US for some period. 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.
- Search for Job
You should begin your job search as soon as you are laid off on H-1B. As you know, your job search will become your full time job until you find a new employer.
- 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 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. You will need a copy of your itinerary showing intent to leave the U.S. 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 U.S.
- If your H-1B status was not revoked when you were laid off you can find a new employer and file a change of employer petition.
- If your H-1B status was not revoked when you were laid off and 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.
- Apply for Change of Status:
Once you 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 H1B transfer petition is submitted to the USCIS if they are still in H-1B status. If you have changed status to B-1/B-2 you will have to wait for the H-1B petition to be approved before you can begin work.
When the USCIS makes their decision on the new petition they have three choices:
- The H-1B transfer request can be approved.
- The H-1B transfer request can be denied, in which case you will have to depart from the US.
- 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
- 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; or
If your old H-1B visa has expired, apply for a new H-1B visa abroad.
If the H-1B visa for the previous employer has not expired, and there is an issue with the change of status, you may be able to simply travel outside the US and return using this original H-1B visa and your new original H-1B Notice of Approval (Form I-797).
- Work using EAD
If you have an EAD (Employment Authorization Document), you 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 you may need to have your new employer submit a new labor certification and visa petition on your behalf.
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- If you also happen to be a 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 application of adjustment of status had been pending for over 180 days prior to the lay off, you may change jobs without jeopardizing your green card application, as long as the new job is in the same or a similar occupation.
- If you had not filed for adjustment of status, or if it has been less than 180 days since filing for adjustment of status, you may have to have your new employer submit a new labor certification and a new EB visa petition on your behalf. In such cases, you may be able to use your original priority date.
- 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 you to have your new employer file a new H-1B petition for you even though you are currently working using an EAD.
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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