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How to Maintain Valid Non-immigration Status after Layoff in H-1B Status

BY Zhang Associates, P.C. [ December 18, 2008 at 23:07:16 ]

As the U.S. faces an ever-growing financial crisis, many people are becoming worried about the effects of the economic slowdown on daily life; specifically, many are turning their attention to job security and the possibility of layoffs in many industries, not just finance. Immediate impacts of the slowdown have led to mass layoffs and an increased unemployment rate of close to 7%. All of these growing trends may have substantial impacts on alien’s immigration status. This is particularly true for alien workers who may lose legal status or immigration benefits if they lose their job.

It is important that foreign workers remain sensitive to their individual industries and take steps to prepare and protect themselves from any negative consequences of the recent financial worries. They should familiarize themselves with the way the USCIS interprets unemployment as well as develop strategies to proactively combat possible periods of unemployment.

When does H-1B status terminate?

According to the USCIS, H-1B status is only valid so long as an employer/employee relationship exists between the H-1B employer and the alien worker. As soon as the employment is terminated, the alien’s H-1B visa is no longer valid. In theory, this means that as soon as the alien worker stops working at for the employer, they are out of status. In later December 2001 just after the tragedy of September 11, one official from the former INS (now the USCIS) announced that the INS would not recognize or provide any "grace period" for maintaining status after employment is terminated.

Many companies grant severance pay or keep those that are laid off on their insurance plans, sometimes for months after the official date of termination. At other times, an employer may take several days to inform the USCIS of the layoff. Strictly speaking, unemployment begins on the day of the layoff not on the day of the notice from the employer to the USCIS or the day of the last pay check. Practically speaking, some argue that H-1B status terminates on the day of the last paystub and that a ten-day grace period is permitted. Currently, the USCIS seems to allow a ten-day grace period to help aliens prepare for departure from the US, apply for an H-1B extension or submit an application to change to another status.

What are strategies against loss of status?

Aliens in H-1B status or other non-immigrant statuses that are dependent on employer sponsorship may want to consider other non-immigrant options if they are concerned about their job security. Ideally, if an alien can find another job before a layoff or right after a layoff, he or she may file for an H-1B transfer and legally work for the other employer while the H-1B transfer petition is pending.

However, in practice, it may be hard for an alien to find another employer immediately after a layoff. If an alien cannot find another job in a short time, his/her spouse holds an independent status such as F-1 or H-1B, the alien worker may change status to a derivative status such as F-2 or H-4. This will help the alien keep valid non-immigrant status in the U.S.

If an alien cannot find another job and has no spouse holding independent status, he or she may return to school and change to an F-1 student. F-1 status requires that an alien pursue a full course of study in an approved college, university, conservatory, other academic institution, or language training program in the U.S. In order to apply for F-1 status, the individual must apply and be already be accepted to study at an approved institution with an I-20 form.

While it may be difficult to gain quick admission to large universities and colleges, aliens can opt enroll in qualified community colleges or language programs. Aliens who are about to lose H-1B employment and opt for this strategy should file a change of status request with the USCIS as soon as possible. As with H-1B transfer petitions, while a change of status petition is pending, the alien can legally stay in US.

Finally, if none of the previously mentioned options fit an alien’s circumstances, as a temporary solution, an alien can change to a B-1 business visitor or a B-2 tourist status while they search for employment.

No matter what type of status the alien applies to change to—F-2, H-4, F-1 or B-1/B2—his/her pending case offers him/her a legal stay in the US. Moreover, once the alien has found a new sponsoring employer, he or she can apply to change back to H-1B at any time.

To conclude, it important to understand that despite recent layoffs by large companies, the American GDP is still relatively strong in comparison to other nations. While the current financial and job situation in the U.S. is definitely something for alien workers to consider and plan ahead for, it should not be a deterrent for those hoping to live and work in the US.


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