I am on an H-1 Visa and Have Just Been Laid-Off

I AM ON AN H-1 VISA AND HAVE JUST BEEN LAID-OFF - WHAT DO I DO NOW?

by Edward R. Litwin
Attorney at Law

Introduction

Some persons, who are in the United States in H-1 status, have recently been laid-off or are concerned about their future employment in the United States. They are concerned about the ramifications of a layoff on their H-1 status. This set of Questions and Answers will address these issues. However, this is general information and is not intended to be regarded as legal advice, as each situation can be varied and complicated.

If I am in H-1 status and am laid-off, am I considered to be out of status?

The current policy of the Immigration Service is when a person is laid-off, they are immediately out of status. That is their opinion, however, there is no law or regulation which states that. In fact, the Immigration Service was considering adopting a new policy that a person who is laid-off, finds another job and files a new petition within 60 days of the lay-off, will not considered to be out of status. But that policy was never adopted.

I have heard that there is a "grace period" is that not true?

Depending on whom you talk to or what web sites you read, grace periods anywhere from 10-90 days are often talked about. According to the regulations, there actually is a "grace period." However, it is valid only under one very limited circumstance. That is, there will be ten extra days allowed on a person's stay for the first entry into the United States. Unfortunately, if a person has extended their stay or changed jobs, this "grace period" is no longer in affect. In reality, therefore, the vast majority of H-1 visa holders do not have any "grace period."

Does the employer have to notify the Immigration Service if I am laid-off?

Under current law, there is no regulation or law which requires an employer to notify the Immigration Service upon the termination of employment. According to instructions on the visa petition form, the employer is " required" to notify the Immigration Service of layoff of an employee in H-1 status. However, there is no penalty to an employer that fails to do so. Recent cases have found employers liable for back pay where the USCIS has not been notified by the employer of a termination. Under most circumstances, it is prudent for the employer to notify the USCIS of a termination.

If I am laid-off do I have to leave the United States?

This is actually a very complicated question. Of course, the Immigration Service would like to see everyone who is laid-off leave the United States. As a practical matter, however, any person who is laid-off usually tries to find new employment, whether he/she is a U.S. Citizen, Permanent resident or holds H-1 visas. Finding a new job takes time. In addition, if a person leaves the Untied States it is highly unlikely they will be able to find a job or attend interviews. For that reason, most persons who are in H-1 status and have been laid-off continue to remain in the United States seeking other employment.

But what about the 180-day rule?

There are actually two 180-day rules. The first one states that if a person in the U.S. has been out of status for more than 180 days and they desire to apply for adjustment of status, they will be ineligible to do so and will, therefore, have to go back home in order to finalize their permanent residence processing. This is not an onerous penalty, since many people, each year, choose to complete their processing overseas, even in cases where they are not required to do so. In addition, the law states that an adjustment applicant cannot have been out of status for 180 days since the last entry. So, this "180- day rule" can be negated by simply traveling outside the United States, obtaining a new visa, and returning to the United States. Therefore, leaving and returning to the United States, normally "cures" the 180-day penalty.

The other 180-day rule arises when a person remains beyond their authorized stay for 180 days or more. If a person remains more than 180 days beyond their authorized stay leaves the United States, he/she cannot return for three years. (A person who remains more than one year beyond his/her authorized stay and leaves the United States, cannot return for ten years.) But the person must remain "beyond their authorized stay," not merely be out of status. For example, if a person has H-1 status authorized until January 2010 and is laid-off today, he/she will not stay beyond their period of "authorized stay" until after January of 2010. The other way that a person "remains beyond their authorized stay" is when the Immigration Service finds out that they are no longer in status and orders them to leave the U.S. It is only in either of these two situations that this 180-day rule is applied. Therefore, theoretically, the person in this example who is laid-off today has until 180 days after January 2010 to find a job, and until then will not have to fear the 3-year/10-year penalty.

What are my alternatives?

A person in H-1 status who has been laid-off has a number of alternatives:

1) Leave the United States immediately - Very few people are interested in taking this option. Many H-1 visa holders have developed their lives in the United States and are interested in finding other work and continuing to remain in the United States;

2) Change status - Some attorneys recommend that when a person is laid-off, they immediately change to B-2 (visitor or tourist) status. Our firm does not generally recommend this since, in order to obtain this status, you must convince the Immigration Service that you are merely here visiting, vacationing or doing other things not related to business or employment. Since, in actuality, most people who have been laid-off are looking for another job, a question as to their truthfulness could arise;

3) Remain in the United States and look for a job- most people choose this alternative. Keeping in mind the 180-day penalties mentioned above, most people have an adequate amount of time to find another job, and file for a new H-1.

Isn't it harder for a person to find another job who is in the United States on an H-1?

There is no question that the U.S. economy has changed from what it was over the last 2-3 years. In order to find a job, people have always had to promote themselves and convince a potential employer that they should be hired based on skills, expertise and ability over someone else who may also be applying for the job. Notwithstanding the current economy, many employers are still hiring, although not at the frantic pace that they were a few years ago. A person who has been on H-1 status is eligible to begin working for a new employer as soon as a new H-1 petition has been filed. This places them essentially on par with their U.S. employee competitors who can be hired in a relatively short period of time. The playing field is more or less level, allowing employers to choose between the best qualified person whether the person is a U.S. Citizen or an H-1 worker.

If I find a new job, do I have to tell the Immigration Service that I was laid-off?

There is no requirement that an employee tell the Immigration Service that they were laid-off by a previous employer. While it is necessary for the applications to be truthful, there is no requirement that the H-1 employee's current employment status be explained to the Immigration Service. Frequently, however, the Immigration Service asks to see recent pay stubs to verify whether the individual is currently in an employment situation. If such pay stubs are requested and it is evident that they were away from employment for a lengthy period of time, the Immigration Service may deny the change of employer application; however, they will approve the underlying visa petition. In this situation, the individual must leave the United States, go back to their home country and apply for a new visa to return to the United States. While it is frequently time consuming and expensive to make such a trip home, most consulates are issuing such H-1 visas quite readily.

If I am not granted a change of employers and must leave the United States am I guaranteed that I will return?

There is no guarantee when you are dealing with agencies of the U.S. Government. However, if all of the rules are followed and no misrepresentations are made, the consulates are usually quite willing to issue new visas.

What if I have already filed for Permanent Residence?

A person on H-1 status who has filed for permanent residence may have some additional areas of relief available to them. Under current law, a person whose application for adjustment of status is based on a labor certification, and has been pending for more than 180 days, may "port," that is, leave their present employer and find new employment, and still continue their permanent residence process. The new employment must be a job, which is the same, or similar to the job for which a labor certification was received. It is very clear that a person who has been laid-off after 180-days can make use of this provision. It is not clear, however, whether a person who is laid-off prior to the 180-day mark but whose case is not adjudicated until after 180-days is eligible to make use of this provision. (However, if the I-140 is denied, the porting option will not help.) In light of the fact that there are no regulations, at this time, a strong argument can be made that a person who has applied for adjustment of status and is laid-off, even only a few weeks after filing, can use this "porting" provision as long as it takes the Immigration Service longer that 180-days to adjudicate their application. Therefore, a person would be able to continue processing their permanent residence as long as they have found a job which is the same or similar to the job which they were doing for their labor certification. This is extremely delicate and complicated and the ramifications need to be discussed thoroughly with your attorney.

What other options may be available to me?

The options discussed above are the most common. However, numerous other options are potentially available including:

1) Apply for a change to F-1 status (student) and attend school to obtain an additional or advanced degree.

2) Marry a United States Citizen- some people are engaged to be married to U.S. Citizens when they are laid-off, although they may not intend to get married at this time. A layoff may prompt them to shorten the waiting period to their marriage. Marrying a permanent resident, however, is a much lengthier process, taking up to 6 years before a person can obtain permanent residence. Also, marriage to a permanent resident will not, by itself, allow a person to remain lawfully in the United States, during the pendency of the process.

3) Start your own business- under certain circumstances a person can incorporate their own business and that corporation can petition for them to obtain H-1 status. This option has a number of potential pitfalls, but under the right circumstances, may be available.

4) Become an investor- The United States has treaties with a number of countries throughout the world which allows their citizens to invest a substantial amount of money in the United States and remain here. Such people are called "Treaty Investors." There is no magic number as to the amount the investment must be, however, persons than less than $100,000.00 dollars to invest would probably not qualify.

This document answers most of the frequently asked questions which we receive in our office about "lay-offs." If after reading this you have question on working in the United States or any other immigration matters, you may call our offices and arrange an appointment at our San Francisco, South San Francisco, or Santa Clara office. There is an initial consultation fee for the first half-hour. The information in this article does not constitute legal advice. The law is constantly changing, and we make no warranty of the accuracy of information.

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