Atty. Vanessa S. Barcelona

IMMIGRATION

December 2001

The assault on job stability in the U.S. continues. For those presently in the United States who are not lawful permanent residents  or U.S. citizens – who have lost their jobs or are just about to  enter the workforce and are unable to find employment – it is hoped that this article can help in providing guidance on how to weather  this storm. It is hoped that it will give the reader a pretty good  idea of what options are available, given U.S. immigration laws and  current immigration policy on the subject.

The H-1B is a non-immigrant working visa for professionals or  specialty workers. To qualify for an H-1B, the non-immigrant worker  must have a minimum of a bachelor’s degree, or the equivalent of one, and must be offered a position that in almost all cases, requires at  minimum, qualifications no less than that of a bachelor’s degree.

The H-1B is one of the most popular visas, and is certainly the most popularly used by foreign workers. It is a temporary visa, and  although normally granted for a period of three (3) years, it does  not give the H-1B holder valid status for the entire 3 year period if
there is a termination in employment or substantial change in the conditions of employment. An H-1B worker, regardless of the validity  date on his/her I-94, is out of status immediately upon termination
of employment by the H-1B employer. In the event of a layoff, especially when there is very little or no notice (something well  within the rights of any H-1B employer), what rights does the H-1B worker have?

The former H-1B worker can return to the home country, at the H-1B employer’s expense. When the H-1B petition is filed, the H-1B  employer makes a commitment to provide for the reasonable cost of transportation abroad upon termination of employment prior to the authorized period of stay requested. Realistically, however, most H- 1B employees are not so eager to leave, and would rather stay in the United States to look for alternate H-1B employment. The H-1B  employer is also required to compensate the H-1B employee until that  employer has filed a request to withdraw or revoke the H-1B petition with the U.S. Immigration and Naturalization Service (INS).

Unfortunately, this is most often an employer obligation which the  former H-1B employee will not seek to have enforced, as filing for a
withdrawal or revocation of the H-1B will immediately put INS on  notice that the H-1B employee is no longer employed and is therefore out of status. Finally, the U.S. Department of Labor does require that the H-1B employer offer its H-1B employees the same benefits offered to other company employees. It remains to be seen, however,
if such equal benefits apply to severance packages that could arguably “extend” the period of time which the H-1B employee will
have in status which can be used towards the search for alternate H- 1B employment.

Unfortunately, the above obligations on the part of the H-1B employer  do not really give solace to a laid off H-1B employee who wishes to stay in the United States, who has built a home here – purchased a car or cars, or a house; whose children are in American schools; who has forged close relationships with friends and colleagues; who has built hopes and dreams, whether career-wise or family-wise, on the assumption that such goals would be realized in America.

There is no grace period to allow for temporary valid status  following the termination of H-1B employment. There are those who believe in the existence of a 10/20/30-day grace period. There is none. There is not even a 2-day grace period. An H-1B employee is out of status as soon as the H-1B employment is terminated, so long
as there is no change of employer application, or any other change/extension of status application filed prior to the actual termination of H-1B employment. The INS Service Centers – there are 4 of them and they each handle a particular region of the U.S. -- in fact have very different policies when dealing with the transfer of H- 1B employment involving a laid off H-1B worker. To be sure, the INS
is allowed by law to exercise its discretion and grant an extension to an H-1B worker, if it finds that extraordinary circumstances
prevented the H-1B worker, or any non-immigrant for that matter, to file for an extension or change of status in a timely manner (i.e., in the case of an H-1B worker, the filing of a change of employer prior to the termination of his or her current H-1B employment). The Texas Service Center (which covers most of the southeastern part of the United States), has adopted a reasonably liberal policy when dealing with such transfers of employment involving an out of work employee. There is no specific number of days however, and each  application is treated on a case-by-case basis. However, transfers of employment have been approved by Texas for H-1B workers with more  than 30 days of unemployment. In stark contrast, the Nebraska Service Center, which covers essentially the Midwest, while also claiming to treat such cases on a “case by case basis” adopts a harsher stance on the issue. The Nebraska Service Center as a matter of policy believes that a layoff, even one without notice, is not in and of itself an “extraordinary circumstance” worthy of a favorable
exercise of discretion. Further, while the Nebraska INS acknowledges  that the laws permit the exercise of discretion, they also recognize that the laws do not mandate it. In such instances, therefore,  where there is an approvable H-1B petition, Nebraska will approve the H-1B but will remain silent on the transfer of employment, thus necessitating travel abroad on the part of the H-1B worker and any dependent family members, so that an appearance can be made at the U.S. consulate in the H-1B worker’s home country for the issuance of a new H-1B visa prior to re-entry.




 

Careful notice, therefore, must be made to the number of days since the H-1B worker has been laid off. If circumstances are such that appearance at a U.S. consulate abroad is possible – even if the applicant is hoping (sometimes against hope) that it will not be required – the H-1B employee may need to make arrangements to depart the U.S. before a lapse in status totals 180 days (or else that same H-1B employee will be subjected to the 3-year bar when seeking re-entry into the United States). Example: Lorena H. is an out of work computer programmer, who entered the U.S. after being sponsored by a computer company whose stock value went from $150 per share to $0.32 per share in the span of 1 month. She finally finds a new H-1B sponsor 40 days from the time she was laid off. A petition is filed and three months from the filing, a Request for Evidence is received. This delays the processing of the case to the point that Lorena is reasonably fearful that by December 28, which marks the 180th day since she was laid off, the H-1B change of employer petition will still not have been decided. What should Lorena do?

At the end of all that waiting, INS could reasonably make one of two decisions:
1. Approve the H-1B petition and change of employer application; or 2. Approve the H-1B petition but remain silent on the change of employer application.

I did not include a scenario where the H-1B petition itself would be denied, based on the assumption that if she is being sponsored for the same type of work (as a computer professional) and Lorena has been issued an H-1B visa before for the same area of work, then her qualifications are such that an H-1B approval is most likely. There is also the assumption there that the H-1B sponsor is a viable sponsor and is able to pay the proffered wage, and further, that the nature of the enterprise is such that the need for employment of a computer professional can be justified.

If at the end of the tunnel we have Scenario 1, then we have no problem, despite the gap in employment. But this cannot be determined until there is a final INS decision on the matter. And if there is a gap in employment, Scenario 2 is always a possibility. Then in preparation for this, Lorena may have to leave the United  States even while the application is still pending, so that if Scenario 2 does occur, she has departed the U.S. before she can be determined to have been out of status for 180 days or more, and she can appear at the U.S. consulate once the H-1B has been approved without fear of a finding that she is barred from returning to the
U.S. for a three-year period. Are there other options? Yes. INS has instituted a new program this year – Premium Processing for certain non-immigrant petitions. A request for Premium Processing can be made either at the time of H-1B filing or while the application is pending. The INS will act on the application within 15 days of receipt of the request.

If wishing to take advantage of this, one would be cautioned not to wait until 15 days prior to the 180th day, hoping that a favorable  decision will be reached without having to pay the $1000 extra fee. The INS commitment, when it comes to the Premium Processing program, is to act on the case within 15 days. It does not guarantee a decision within that time period. “Acting on a case” may mean sending notice of a request for additional evidence – although in our example above, such request already took place prior to the possible filing of Lorena’s request for premium processing. Certainly, a $1000 is a lot of money, especially for a laid off H-1B worker. But if there is a decision in favor of a change of employer, that $1000 spent could very well outweigh the cost of foreign travel, not to mention the frayed nerves that would result from facing the prospect of appearing before the U.S. Consulate abroad. Of course, distances to home countries vary, along with that the cost of travel. Consulates also differ – interviews at some are more pleasant experiences than at others.


An H-1B worker faced with an unexpected layoff with no prospect of a new H-1B employer in the horizon may consider changing status to that of a temporary visitor. So long as that person did not engage in unlawful employment, it is a means to preserve valid status in the U.S. while determining whether conducting a job search or making arrangements to depart the U.S. is that person’s best option given such factors as market trends, employment prospects, etc. It is also a way to engage in activities one would have engaged in as a visitor, if they had the time to do so but for their former H-1B employment. The U.S. State Department, in its Foreign Affairs
Manual, does allow for visitor visa issuance for someone seeking to enter the U.S. for the purpose of negotiating contracts, consulting with business associates, participating in professional conventions, undertaking independent research – activities normally done in the course of conducting a job search.

Unlike a laid off H-1B worker, a foreign student who is graduating from college soon without any prospect of employment in the immediate future, may take advantage of a 60-day “grace period” to make arrangements to depart or seek employment and corresponding employer sponsorship. A student is also allowed by law, after having completed his or her course of study, to apply for post-completion Optional Practical Training (OPT). OPT will allow the student, for a
12-month period, to live and work in the United States with a valid work authorization card. Students on OPT usually use that 12-month period to actively seek and hopefully obtain employment in their field, thereby enabling them to convert the temporary work permit to a temporary working visa (usually the H-1B) for a more long-term, albeit temporary, employment, usually with an H-1B sponsor. The application for OPT can be filed as early as 90 days prior to the completion of study, and as late as within 60 days following the completion of the student visa holder’s course of study in the U.S. Students are usually assisted in these matters by a Designated School Official (DSO), usually someone within the International Student office at their college or university. With a work permit, and the corresponding 1-year extension of status, it is hoped that the graduating student can “weather the storm” during what promises to be, for many, a difficult job search in the days ahead.

This article is meant merely as an informational source. Anyone finding themselves in a predicament as described in this article should seek legal assistance so that specific advice can be given taking into account each specific  situation. This article does not purport to give legal advice to anyone in particular, nor should it be construed as legal advice.
 

Vanessa S. Barcelona is an attorney, practicing primarily in the field of U.S. immigration law. She is a law graduate of the University of Florida, where she also obtained her Bachelor’s degree.