While some may find it a slight to the “big picture” to discuss the plight of a laid-off H-1B worker (given the relatively small percentage of such workers when compared with the unemployment rate of all U.S. workers), it’s worth taking a glimpse at the unique circumstances confronting such an H-1B worker and his/her family upon receiving notice of termination from employment. Especially since this dilemma, unlike most others, has a simple fix—a regulatory grace period.
The underlying problem is that employers rarely give ample notice in circumstances involving a reduction in force. Instead, a two week “severance” is commonly offered to the worker, with the actual termination effective immediately. This presents problems to H-1B workers which are far greater than the typical issues we all face from a loss of employment. Indeed, since the H-B visa classification is “employer specific,” an H-1B worker is entirely dependent on his employer not only for livelihood, but for the ability to remain in legal status in the United States. The H-1B regulations are rigid and antiquated. DHS considers an H-1B worker to be “out of status” as of the date of termination—regardless of the duration or amount of severance. In other words, in addition to the initial shock of losing one’s employ, the H-1B worker and his/her entire family are immediately considered “out of status” and subject to removal from the United States.
Under current law, DHS does not provide a grace period once a foreign national who is employed pursuant to an H-1B is terminated. Under a strict interpretation of the law, for such a foreign national to remain in an authorized period of stay, an application for an extension of stay in H-1B status (assuming new employment is found) or a change of status to another non-immigrant classification (e.g., B-2 visitor for pleasure) must have been filed prior to or contemporaneous with the termination of employment. This is true for not only the worker, but also for his/her family. A failure to do so will likely render the entire family “out of status” – making a distressing situation exponentially more stressful for the terminated H-1B worker and his/her family. Moreover, a late filing for a change of status or for an extension of stay in H-1B status could result in a denial of such application. A denial, in turn, would require a trip back to the family’s country of last residence to obtain visas and re-legalize their status. Needless to say, such personal disruption and expense is no small matter.
Of course, lay-offs are a fact of life, especially so in today’s economic environment. What’s more, an H-1B worker will never be immune from the “at-will” aspect of an employment-based category. So, what’s the solution? To ameliorate the harsh effects of a lay-off, DHS could provide a reasonable grace period under the law (45 days) before the foreign national and his/her family would be deemed “out of status.” Such a simple solution would at least provide the “disenfranchised” family an opportunity to seek proper counsel to remain in the United States in legal status while considering its options—whether filing a change of status application, filing a new H-1B petition or returning to their last country of residence.
Perhaps comprehensive immigration reform, if and when it is enacted, will provide for such a grace period and make other legislative adjustments in recognition of the contributions made by foreign national workers who are filling specialty occupations—rather than applying an archaic zero tolerance policy that does little to serve anyone’s interests.
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Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP