INS Should Stop Fudging about Laid-off H-1B Workers
The H-1B visa is issued for a period of three years at a time for a total of six years. The foreign worker’s H-1B status is linked to the employer who has sponsored him or her. If the foreign worker’s job is terminated, the INS has historically considered the person to have fallen out of status.
As a practical matter, this policy makes no sense and could cause extreme hardship. If an H-1B worker is terminated, he or she is expected to leave the US on the same day, as well as uproot children from school and sell the house and car.
In the current economic climate, not all terminated visa holders are going home. Many are able to find new jobs. Because the economy is changing, the job market is experiencing an upheaval. Different types of employers are now able to hire previously laid off H-1B workers.
The INS presently has no policy with respect to the status of an H-1B worker who has been laid off. However, it does have discretion to facilitate a transfer from one job to another. The INS must therefore be flexible as many H-1B workers are finding new jobs and need the time to do that. Until the INS is able to issue regulations, the INS must exercise its discretion liberally. Unfortunately, the INS does not apply its discretion in a consistent manner.
When the INS issues regulations, they will be based on Section 105 of the American Competitiveness in the 21st Century Act (AC21), which allows an H-1B worker to transfer jobs at any time during the three-year term of the H-1B visa. It is clear that Congress did not limit the benefit of transferring to a new employer only to those who are presently working lawfully in H-1B status.
Under Section 105, INS clearly has the authority to allow an H-1B worker to transfer to a new job even if he or she is not currently working for the H-1B employer during the term of the H-1 visa. The INS should not be fudging on this issue and debating on whether to craft arbitrary grace periods of 60 days, 90 days or 180 days.
Part of the problem is that there are some policy makers within the INS who do not want H-1B workers to compete with U.S. workers for jobs. However, Congress has always been concerned about protecting H-1B workers by requiring employers to guarantee prevailing or actual wages and also giving the DOL oversight over the H-1B program. There are statutory provisions in place that put H-1B workers on the same level playing field as U.S. workers. By not allowing an H-1B worker time to find another job undermines the protection that has been accorded to an H-1B worker, as well as the Congressional mandate in Section 105, which allows an H-1B worker to compete within the U.S. economy and not be beholden to a single employer.
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 email@example.com.