I Lost My H-1B Job...What Now?
ClearedForLanding.com, a Los Angeles based US immigration web site, has received a growing number of letters from persons about to lose their H-1B position, concerned about their future. The H-1B was the visa nicknamed the "tech visa" just a couple of years ago, owing to its widespread use to fulfill the seemingly endless demand by the dot com sector. In reality, the visa was and is heavily used by the biotech sector as well.
The H-1B, or H-1, as it is also called, allows a person with a 4-year degree or equivalent (which would be 12 years experience in a field that requires a degree) to legally work in the US for a maximum period of 6 years. The dual intent doctrine allows a person to apply for a green card while on the visa, and not lose the visa status. Only three visas allow this "dual intent," the H, the L (intracompany transferee or person with specialized skill) and the E (treaty investor/trader/key employee).
A number of persons came to the US in the past few years to help with the huge demand for specialists in the tech sector. Unfortunately, the economic pressures of the market, among other factors, has caused that demand to wane. As a result, many H-1Bs are in a state of panic as they have settled into a life in the US, that is now terminating abruptly. The circumstances are especially trying if these people were offered a permanent position by the employer (i.e. filed for a green card as well) and expected to spend the rest of their lives here.
There are a number of solutions available, however, and not all of them are difficult. The first and most obvious is to request of the employer a part-time position. If a person is talented, although a company may not be able to afford the costs of the full-time services, a part-time position may just work. If that H-1B (worker) obtains more than one H-1B position, he or she may become financially sound and can rebuild from there.
The second possibility is to consider the options of the person's spouse, an area often overlooked. When a person obtains an H-1B, the person's spouse obtains an H-=4. This visa allows the spouse to remain in the country but not work. The spouse may be eligible for an H1 of his or her own, an E, or a work-related green card.
An E visa is for investors and traders. An investor can invest in a new, existing or franchise company. Additionally, one can buy into a company that is currently operational and partner up. An investment amount is a detailed topic, but, basically speaking, the investment should be proportional to the type of investment. For example, an investment in a motel would be proportionally more than in a consulting firm.
On the topic of consulting firms, that choice of investment would require one of the smallest cash infusions, as most of the assets are intellectual. This is a viable option not only for the spouse, but also for the H-1B worker. The first requirement is that the applicant should be from a treaty country; for a complete list of qualifying countries, see http://www.clearedforlanding.com/Treaty.html. Please note that some countries offer treaties that allow for the E-2 (treaty investor), some only for the E-1 (treaty trader) and some for both. A treaty trader is a person in a business involved in the import/export of goods with the person's treaty country of nationality.
Unlike an H-1B, with a 6-year maximum duration, an E visa is renewable indefinitely; the requirement of the applicant is a mental intent to return to her or his country of origin at some time in the future. The good news about an E visa is that one is investing in order to make a return, so it should be a profitable option. Many H-1s, due to their valuable skills, are setting up E visa consulting firms and selling their services to the very companies that employed them.
Another option is the work-related green card. This option is not as easy as the E situation. Work-related green cards (they allow you to remain in the US permanently) have waiting periods measured in years. There are three main categories, known as EB (employment based) 1-3. Briefly, the first EB is for persons of extraordinary ability, those few who have risen to the top of their fields; they do not require an employer in order to apply. Additionally, the category covers outstanding professors and researchers, as well as multinational executives and managers (often L-1s).
The EB-2 is for people of "exceptional ability." The standard is not as high as with "extraordinary ability," and a job offer is required. EB-3, the most popular, is for both the skilled workers and professionals. Labor certification is required, but the impact can be minimized by employing a procedure known as "Reduction in Recruitment."
The third employment preference can take anywhere from approximately 2½ to 4½ years to achieve. Labor certification is a process whereby the applicant demonstrates there are no workers who can fill the position. The process involves advertising the position for three consecutive days and demonstrating that no qualified persons applied for the position. A new process, known as Reduction in Recruitment (RIR) cuts down the wait by approximately two years. This is accomplished by demonstrating that advertisements were placed before the case was submitted, and there were no qualified applicants. The rules for RIR are quite detailed, and one should consult an attorney before placing the advertisements, for if they do not conform, they will have to run again, costing monetary and temporal delays.
The bad news with a work-related green card is that if the applicant does not qualify for a visa to keep him or her in the country, he or she will have to go home and wait there for the process to complete. As these green cards are based on a first-come, first-served basis, once the decision to follow this route has been made, no time should be wasted in initiating the procedure. If the H-1B worker cannot locate an employer, perhaps his or her spouse can. The EB-3 allows for skilled workers, which is summarily defined as a worker with two years' experience or training with a job offer that requires the same. This is important as many people assume that with a skill or degree, any job offer can fulfill the requirements, but that is not the case.
Clearly the easiest solution is part-time work and the second is the E visa. As an expert in a sub-area of technology, an E visa may be just the ticket as many persons are now charging well in excess of $125 per hour for their expertise. Legal fees for such a case are in the $5,000 range, so the burden is small in starting such an operation. In some cases, equipment the consultant owns can be transferred to the firm and counted as part of the investment. In any event, the layoff may end up being the best thing that happened to some people; when one door closes, another often opens
About The Author
Steven Riznyk has been practicing immigration law for 15 years and has dealt with a variety of complex problems and appeals. He currently spends his time researching the laws and preparing cases for other attorneys nationwide; he only handles a limited number of cases for the public, preferably complex. He is based out of Los Angeles at 310-276-9992, firstname.lastname@example.org, and wrote a web site on immigration for a private corporation, it can be found at www.ClearedForLanding.com.