How H1-Bs can protect their status when laid off.
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 what the law really says; you need an attorney.
After a lay off, the following are suggested steps you should take:
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.
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.
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.
For additional information on adjusting the status of you or someone you know, call us at (405) 645-6022 or ask a lawyer at www.immigrationOKC.com.
