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The Plight of H-1Bs During an Economic Downturn
by Cyrus D. Mehta

     In the current economic downturn, many are being laid off. An individual on an H-1B visa is most vulnerable.

     The H-1B visa is a temporary visa that allows a foreign national to work for an employer in a specialty occupation. A "specialty occupation" is defined as an occupation that requires a US bachelor’s degree in a specialized area as the minimum requirement for entry into the field. Thus, the H-1B visa is limited to jobs that are highly skilled and specialized.

     The foreign national is tied to the employer who has sponsored him or her for the H-1B visa. Once the employment is terminated, the H-1B visa holder is no longer in status. Contrary to popular perception, the INS has stated that there is no grace period for an H-1B visa holder to look for another job. This individual, however, has a period of 10 days to depart the US.

     It is very important that an H-1B visa holder on the verge of termination file another H-1B petition through a new employer prior to his or her last date. Under the new portability rules adopted by Congress in October 2000, one can start employment with a new employer after the filing of the H-1B application. In the past, the foreign national could only work for the new employer once the H-1B application was approved - a process that could take a few months.

     In today’s economic climate, it might be difficult to find another job before termination. Once an H-1B visa holder has fallen out of status, it is extremely difficult for him or her to extend status or change to another status. If new employment does indeed materialize after the individual has fallen out of status, he or she will have to leave the US and be re-admitted under the new H-1B approval, and possibly obtain a new visa too. At times, when the gap between two employers is not huge, the INS may exercise discretion and approve the H-1B extension of status despite a lapse in status.

     However, the INS should be more flexible with regard to allowing an H-1B visa holder to find a new job in the US. It is unfair to expect an H-1B visa holder to leave the US in 10 days after having been employed in the US for several years. The H-1B portability provision, which I alluded to earlier, does allow for such flexibility but the INS has not yet interpreted it in the generous way that it has been written by Congress.

     Finally, many H-1B visa holders are also in the pipeline for green cards. If they are terminated, the employer generally withdraws the green card sponsorship. Unless an individual is in the final stage of the green card process – which is 180 days beyond the filing of an adjustment of status application – he or she can kiss goodbye to the green card. It will have to be started all over again through another employer.

     US business immigration policy, unfortunately, is employer driven, which puts the foreign national in an extremely disadvantageous provision. Although Congress did give foreign employees some degree of portability, these provisions do not go far enough in protecting them in today’s economic climate or against an employer’s caprice.



About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is Vice Chair of the American Immigration Lawyers Association's National Labor Department Liaison Committee, trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-686-1581 or info@cyrusmehta.com.


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