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We have included below some frequently asked questions (FAQ's) that are regularly raised by affected H-1B employees when facing
layoff or termination. Each individual's case has its own particular set of facts and circumstances. As such, the following is provided as general
information and is not intended to be received as legal advice. It's our hope that the following will be of benefit to those individuals who
unfortunately are faced with a lay-off or termination of their employment.
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Is there a grace period for laid-off H-1B Workers?
The Legacy BCIS (now BCIS) announced in December 2001 that it does not recognize or provide any "grace period" for maintaining H-1B status after an
individual is terminated by his/her employer. The BCIS recognizes that this may cause some hardship to those terminated or laid-off H-1B workers,
but maintaBCIS that the BCIS's position is the correct interpretation.
The 10-day grace periods that are recognized by the BCIS are as follows:
- The H-1B worker can be admitted to the U.S. up to 10 days prior to the validity of his/her visa petition
- The H-1B worker has a 10 day grace period following the expiration of the period of admission
- In the case of denials of extension, the H-1B worker is given up to 10 days to depart the United States
It is clear that a lay-off or termination of employment is not a situation to which any of these exceptions apply.
Current regulations require that an individual be in status at the time that an extension of status is requested. Unfortunately, with layoffs and
terminations, many H-1B workers are unable to maintain status prior to the filing of an extension of stay request. In this situation, failure to
maintain status can result in the H-1B petition being granted, but without an extension of stay being approved. Accordingly, an I-94 card will not
be attached to the approval notice and the beneficiary will be forced to exit the United States and obtain a visa at a U.S. consulate. Only after
obtaining the H-1B visa will he/she then be able to lawfully return to the United States in H-1B status.
It is noteworthy to point out that the BCIS does have a regulation that allows the Service to use discretion and "overlook" short lapses in status.
However, extraordinary circumstances are required for the Service to exercise that discretion. The BCIS has declared that even short lapses in status
are not justified, in the context of terminated H-1B workers, absent extraordinary circumstances. The bottom line is that there is no official
"10-day grace period" for filing through another employer, and the BCIS continues to exercise its discretion to consider the lay-off on an unofficial
case-by-case basis.
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I was employed in H-1B status until last week when I was laid-off. Am I considered to be out of status now?
Yes. The BCIS has not changed its view that a person in H-1B status who is laid-off is considered to be in violation of his/her status. Many who find
themselves in this situation have a new employer file an H-1B petition as soon as possible after the lay-off has taken place. If the individual is no
longer working at the time the H-1B petition is filed, the H-1B petition can still be approved. However, the INS, while approving the petition, may
require the individual to travel outside of the U.S. and obtain a new H-1B visa.
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Is there a 30-day grace period for an H-1B petition or extension of status?
By now, most are familiar with the rumors that continue to circulate concerning a 30-day grace period for laid-off or terminated H-1B workers. In fact,
there has also been a 60-day time frame proposed by the BCIS itself in a Memo analyzing the American Competitiveness in the 21st Century Act (AC21).
Unfortunately, the BICS has subsequently said that neither of these grace periods applies in the case of an H-1B worker or his H-4 family members.
Therefore, if the H-1B worker is considered to have not maintained status in the United States, the BCIS maintains that all dependent family members may
not be considered to be maintaining status as well. As of this writing, the BCIS has not adopted any type of policy that officially acknowledges a 60-day,
90-day, or any other period after the lay-off occurs.
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After I've been laid-off, what happens if my employer notifies the BCIS and revokes my H-1B petition?
There is a requirement that an employer notify the BCIS that it has terminated or laid-off an H-1B worker. The good news is that the BCIS is slow at this
point in terms of processing H-1B revocation notices. Generally speaking, it can take several months for the BCIS to actually process the revocation notice.
However, if an individual is attempting to find another job, it should be done as soon as possible after the lay-off or termination takes place. The new
employer should not delay in filing the new H-1B petition. If you have been out of work for some period of time, you may not be able to present the current
pay stubs as proof of your continuing H-1B employment. As such, as referenced above, it may be necessary to travel abroad to obtain a new H-1B visa, if the
H-1B extension is not granted.
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I was laid-off last week. What are the options available to me?
An H-1B employee who has been laid-off has several options depending on the person's individual circumstances. It may be possible for the individual to change
their status to one of the following categories:
- F-1 (Student status)
- H-4 or F-2 (Dependant of an H-1B or F-1 spouse, respectively)
- B-1 (Business status)
- B-2 (Tourist)
While the Legacy INS took the position that a person could apply for a B-2 visitor visa in order to seek and secure other employment, the new BCIS has not
reaffirmed that policy.
Once terminated, the BCIS would prefer to see each individual leave the United States since they are no longer working in H-1B status. However, given the
difficulty in securing employment from abroad, many laid-off H-1B workers attempt to secure new employment while remaining in the United States. Some choose
to seek new employment without changing status while others may feel more comfortable filing a Change of Status application while continuing to seek new
employment.
This area is certainly a complex area and no general answer can be given. If you find yourself in this situation, you should quickly seek competent immigration
counsel to assist you in the process.
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What are the consequences of falling out of status?
As most of you know, the consequences for not maintaining H-1B status can be quite severe. If a permanent resident case is pending the out of status individual
may not be able to apply for Permanent Residence in the United States and will have to have an interview in his/her country of origin. Moreover, if an
individual remains beyond their authorized stay for more than 180 days, they quite possibly could be subject to a three year bar before they can return to the
United States. An individual who remains in the United States for more than one year beyond his authorized stay and departs the United States, will not be able
to return for 10 years. It is important to note that there is a distinction between an individual who remains in the United States "beyond their authorized
stay" as opposed to an individual who is "out of status". Again, this is a complex area and competent immigration counsel should be consulted to develop the
best strategy if maintaining status becomes an issue.
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What if the company keeps me on their payroll without pay?
Unfortunately, BCIS is unlikely to conclude that you "remain in status" since you are no longer working for the company. This is a risky option to pursue, both
for the company and for the H-1B employee. Consultation with counsel is necessary prior to pursuing this course.
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What if the company has agreed to give me a severance package that includes getting paid for 3 months after I was laid-off. Will this allow me to
remain in status?
Unfortunately, the BCIS may consider you out of status on the day you stop working. The BCIS has, on occasion, taken the position that it really doesn't matter
if you continue to be paid by the employer. However, since you will continue to receive pay stubs, this may be of some benefit to you in filing an H-1B Petition
for employment with a new employer.
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What if my employer has already filed for permanent residence on my behalf?
In this situation, you may have certain rights depending where you are in the process. If you have an application for adjustment of status that has been pending
for more than 180 days, provided it is based upon the second or third preference employment category, you can port to a new employer without filing any further
petitions, as long as the job is in the same or similar occupational classification. This portability provision can be very valuable provided the requirements
are met.
There are no regulations that have interpreted this provision of law. As such, there are some gray areas, for instance, the situation where an individual is
laid-off or termination prior to the 180 day requirement but whose application is not adjudicated until after the 180 day requirement. Again, this is a complex
area of law and you should seek competent immigration counsel to assist you.
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