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Question:

I am in H-1B visa status. I know the INS is planning to issue regulations describing how an H-1B worker who is terminated from employment may maintain status and remain in the United States while seeking a new job. But what happens if I am terminated from my job before the INS issues regulations or policy statements? How long can I stay in the US while I try to find another H-1B job? What can I do?

Answer (by Angelo A. Paparelli):

There are no clear answers to the perplexing questions you pose. The INS and the Department of Labor ("DOL"), the two agencies responsible for administering the H-1B visa category, have not issued joint regulations that would answer your questions. While the DOL has issued an Interim Final Rule, the preamble and text of the rule raise more questions than clear answers on this issue. Until the two agencies harmonize their views, an H-1B worker must take steps that are reasonable under the circumstances and consistent with existing law, regulations and precedent cases. The following list of potential actions does not include all possible strategies and does not offer a complete answer from the perspective of the H-1B employer (a forthcoming Q and A will provide an answer from the employer's perspective). Here are some possible steps for an H-1B worker to consider:

If you suspect or are informed that a layoff is imminent, consult an employment lawyer and an immigration lawyer about your legal rights and options.

Try to negotiate with your employer a brief extension of your H-1B employment. Perhaps you can negotiate with your employer and arrange terms of separation that maximize your range of options. For example, if your employer is prepared to offer a severance package in lieu of salary, perhaps you can negotiate an arrangement whereby the amount of the payment is treated not as severance but instead as a continuation of salary and you are to be considered by the parties as "on call" and available for H-1B duties. This might provide a reasonable basis to assert that your H-1B status is maintained (i.e., that you have not violated your H-1B status) by reason of your on-call availability, but only for the duration of the salary pay-out period. Bear in mind, however, that since this period would likely be treated as non-productive time, the DOL's so-called "benching" rule would still apply to your employer. Thus, your employer is still obliged to provide full compensation and benefits, and otherwise continue to comply with the DOL and INS regulations governing H-1B employers. Although this approach may only prolong your H-1B status for a short period, it may provide you enough time to pursue other options or await the anticipated INS regulations or policy memo on this topic. Try to negotiate with your H-1B employer that the employer will not take steps to revoke your H-1B petition (an act that may not be permitted or recognized anyway because of the public policy behind the new H-1B portability law). The employer can still notify the INS - as it must do under current INS regulations - that a change in your employment has occurred. But the employer should ask that the INS merely note the change in its records. The employer should state in its notice letter to INS that it opposes revocation of your H-1B petition because of the new portability law. While it is uncertain how the INS would respond, the act of providing a notice of this sort may give you additional time to find another H-1B employer and have that employer employ you under the new H-1B portability law (AC21, the American Competitiveness in the 21st Century Act, 105) by filing a new H-1B petition for you with the INS. Hopefully, the INS will see that there is no need to revoke petitions in this circumstance, particularly since such action flies in the face of AC21.

Evaluate whether you can and should switch to another nonimmigrant status by filing an application to change status with the INS before the effective date of your termination. Each nonimmigrant status carries with it special requirements, and you need to be sure that you meet the requirements of the particular nonimmigrant status you ultimately seek and that you represent all facts fully and truthfully in your application to the INS. Some nonimmigrant visa categories to consider might include the B-1 (business visitor), B-2 (visitor for pleasure), or F-1 or J-1 (student categories). These categories do not require an employer sponsor. Once a change of status application is timely filed, the INS practice is to allow you to remain in the US until the agency issues a decision on your application. However, the INS takes several months to decide change of status applications. During that time technically you cannot engage in the new activities permitted under the category to which you want to change to (e.g., B-2 visitor). Moreover, be aware Be aware, however, that if you apply to change status or if your change of status is approved by the INS, it may be more difficult for you to return to H-1B status if you later find a new H-1B employer. Thus, you may be required to depart the US and try to return on a valid, unexpired H-1B visa.

Depart the US before the period of H-1B stay authorized on your form I-94 (departure card) expires. Even if you have already been fired from your H-1B job, under current INS interpretations a departure before the I-94 expiration period would not expose you to the 3- and 10-year bars on reentry or the visa-voiding provisions of the Immigration and Nationality Act. You should understand, however, that current law provides no explicit grace period within which you may lawfully depart the country.

If you are terminated and the employer will not prolong your H-1B status, and you are unable or unwilling to leave the US, the forthcoming INS regulations may ultimately accord you a retroactive grace period and allow your H-1B status to be preserved. This depends on many factors that are still unknown, such as the length of the grace period INS ultimately selects and on the time it takes you to find another H-1B sponsor. Alternatively, if you find another H-1B sponsor, the new prospective employer's H-1B petition to the INS could request that you be allowed to commence employment once INS approves the petition. The employer would make this request by invoking a special regulation (8 Code of Federal Regulations 214.1(c)(4)) that permits INS to exercise discretion and approve an untimely application for extension of status if extraordinary circumstances are shown and other conditions are met. You and your employer should each consult with legal counsel to determine whether this regulation might reasonably apply in your case. The regulation talks about situations where nonimmigrant status "expires" and it is not clear whether H-1B status expires when there has been a failure to maintain status. There have been cases, however, where the INS has exercised discretion favorably and relied on this regulation to allow a terminated H-1B worker to be employed by a new employer if the gap period between jobs has not been too long. Bear in mind, however, that you will probably be required to postpone commencing your new H-B job until after the INS approves your application (since pre-approval work for the new company may disqualify you from the benefit of the cited regulation).

The foregoing are answers to questions posed from the perspective of the H-1B worker. A future Q and A will provide possible answers to questions asked by H-1B employers who must downsize their workforce and terminate H-1B workers. Meantime, additional background on the topic is available at the link below which connects to articles by Yoshiko Robertson, Janet Lee and Angelo A. Paparelli on AC21 and H-1B reductions in force.

Paparelli & Partners LLP:
http://entertheusa.com/publications.htm

This Q & A exchange is part of the 3-part seminar series on H-1Bs at ILW.COM. A distinctive element of this series is the interactivity with the speakers. Apart from the Q & As during the phone seminar, participants can also pose questions such as the one above to the speakers by email.

For more information, or to sign up online, click here
For more information, or to sign up by mail/fax, click here

Disclaimer: The foregoing is general information provided to the public on a subject of great interest to U.S. employers and H-1B workers. It is intended merely as a general review of a complex and confusing subject for which there are very few clear and reliable answers. The information is not intended as legal advice and may not be relied on as such. By providing to the public the general information below, no attorney-client relationship is created. The legal outcome in a given case will completely depend on all of the relevant facts in a given case and thus will vary from case to case. For legal advice and representation, the readers are cautioned to consult a qualified attorney who practices immigration law.


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