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Preserving your status in the United States after a lay-off[7/25]

BY Zhang Associates P.C. [ July 16, 2009 at 11:19:45 ]

It is no secret of course that the layoffs of the past six-twelve months are a serious concern for all workers, but especially for foreign nationals whose visa status is contingent upon maintaining employment with a specific employer. There are many myths and rumors about grace periods for foreign workers and other issues relevant to lay-offs that spread confusion. This article is a brief yet accurate overview of options for laid-off workers to legally remain in status in the United States. In particular, this article focuses on individuals in H-1B status, since the predominant percentage of laid-off foreign workers are in this category. If you are not in H-1B status, there may be additional options or information relevant to your situation that only an immigration attorney can advise you upon, and we encourage you to contact us for more information.

Legally remaining in H-1B status is contingent upon maintaining employment with the H-1B visa sponsor. A lay-off obviously eliminates such status, and there is no technical grace period when you hold H-1B status. Therefore, an H-1B visa holder needs to act quickly upon learning of a potential lay-off. Not every situation is the same and a variety of situations are briefly described here:

1. You receive a sudden termination notice that is effective immediately: This is the horror story for most temporary visa holders. Nevertheless, you do have a few options:

(i) File an H-1B transfer prior to termination and benefit from H-1B portability:
One of the greatest benefits of portability is that it allows the visa holder to begin working for a new employer sponsor immediately upon filing a new petition. To take advantage of the portability provision while in the United States, the transfer application must technically be filed prior to the termination of the prior job since the H-1B worker must be in a valid status when the transfer is filed. This may be difficult for workers who receive sudden termination notices. While there is no technical grace period, there are a few options that alleviate the severity of this rule. First, while every case is different and subject to the discretion of individual officers, our firm has successfully obtained approvals of transfers filed as many as thirty days after a lay-off occurs. This should not be viewed as a bright-line rule but simply as evidence of the possibility that a transfer can be successful even after a layoff. Premium processing would ensure a quick response and avoid the uncertainty associated with the outcome of the transfer petition.

Second, even if the USCIS were to deny the petition to transfer status in the United States due to the gap between the lay-off and the filing of a new petition, the H-1B petition itself will most likely be approvable. Thus, if the worker is willing to go to a consulate for visa processing after the transfer petition is approved by the USCIS, where greater leniency may be encountered, employment can be resumed upon a return to the United States.

Lengthening the transfer process of course is the new rule in place since June 30, 2009, dictating that certified LCA reports require a 7 business day time period. This is in contrast to a prior ten minute timeline. Thus, although you may find a new employer to sponsor your H-1B transfer with short notice of a layoff, it is important to bear in mind this timeline for filing a transfer petition. The options outlined previously provide some potential solutions to this new complication, as do options for switching to other statuses that are outlined below.

(ii) File for B-1 status immediately: Although under-utilized, this option is available to individuals who receive immediate termination notices. An I-539 to change to B-1 status can be e-filed using the USCIS website (an immigration attorney’s assistance is recommended) on the same day that you receive such a notice. Valid bases for claiming B-1 status include an opportunity to wind up one’s affairs in the country, sightseeing, visiting friends and family and other activities. . Although the approval of such an application is within the discretion of the USCIS officer, such applications have been approved in the past. A B-1 visa generally provides a six-month stay, so if you have not found a job or school within six months of changing status to B-1, you need to either extend your B-1 status or transfer to another status. In practice, extensions are rarely granted since the USCIS believes six months is sufficient for a temporary stay and changes of status from B-1 status are viewed with suspicion. Thus, changing to B-1 status can carry some risks because of its limited time duration.

(iii) File for student status immediately: We recommend an F-1 visa as a viable option for a lay-off period and advantageous in comparison to B-1 status because it does not have fixed expiration date. F-1 terminates on your last day of school/educational program, so you can stay in the U.S. until you finish the relevant program. F-1 status requires you to pursue a full course of study at an approved college, university, conservatory, other academic institution, or language training program in the U.S. In order to obtain F-1 status, you 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, you can opt to enroll in qualified community colleges or language programs. Our practice indicates that USCIS is generally lenient in changing status from H-1B to F-1. Many clients enrolling in language programs after obtaining U.S. Master or Ph.D. degrees have not been challenged by the USCIS in their applications for F-1 status.

(iv) File for status as dependent of your spouse if they have independent status. Gathering such documentation may take a few days and it is recommended that you file for such change of status prior to the termination of your job-specific status to avoid any out of status periods in the United States. As a practical matter, many immigration officers will overlook a short out of status period. Once you have submitted your change of status application, you now have the authorization to remain in the United States based on your pending change of status application.

2. The best-case scenario is where your employer gives you sufficient time to file for a change of status or to look for a new job. If you are successful in finding a qualifying new job, then you can begin working for a new employer immediately upon filing an application to port your H-1B visa to the new employer.

3. H-1B Portability where you entered the U.S. on an H1B visa: Although H-1B portability is generally applied to allow an H-1B employee to immediately commence new employment with a new H-1B sponsor when shifting from one H-1B employer to another, the statutory language that permits H-1B portability does not technically limit portability to such instances where the individual is currently in H-1B status. Portability technical applies to “a nonimmigrant alien … who was previously issued a visa or otherwise provided nonimmigrant status in H1B” pursuant to INA § 214(n)(1). Therefore, an individual who was admitted into the country on an H-1B visa and then subsequently lost such status can benefit from porting and commence new employment with an eligible H1B sponsor upon the filing of a new H1B petition by this sponsor. For example, an individual who entered the country through an H1B visa, switched to H-4 as a result of layoff, and now wants to commence H1B employment again can do so upon the filing of the new petition.

Although the law on this issue is not settled, the possibility of portability in such circumstances makes you more attractive to employers since they do not have to wait for the approval of your H-1B application to commence your employment.

In closing, it should be noted that every case is different and, as is commonly said, what is good for the goose may not be good for the gander. You should carefully consider your options and avoid or minimize any periods where you will fall out of status. To this end, it is essential that you contact an immigration attorney as soon as you learn of a potential/impending layoff since time is of the essence and options begin to run out once the clock starts ticking. It is also important to bear in mind that this overview was targeted to options specific to H-1B workers. Although some of these options may still apply to individuals with other immigration statuses in the U.S., every case is different. At Zhang and Associates, we have significant experience advising clients facing such situations. We will advise you with intelligence, vision and a focus on your best interests in guiding you towards an appropriate solution for such unwelcome and unforeseen problems.

Special notice:

On Saturday July 25, 2009, senior Attorneys at Zhang & Associates will hold seminars in eight cities. Our attorneys will talk about H-1B, NIW, EB-1, PERM, etc.

Houston: 10:30am~12:00pm CST Presenter: Attorney Victor Bush
Chicago: 10:30am~12:00pm CST Presenter: Attorney Annie Yang
New York: 10:30am~12:00pm EST Presenter: Attorney Jing Amy Feng
Los Angeles: 10:30am~12:00pm PST Presenter: Attorney Daqin Zhang
Austin: 10:30am~12:00pm CST Presenter: Attorney Jeannette Liu Golubovic
Iowa city: 1:00am~2:30pm CST Presenter: Attorney Jerry Zhang
Urbana: 2:00am~3:30pm CST Presenter: Attorney Jane Xu
Boston: 2:00pm~3:30pm EST Presenter: Attorney Joe Jian Zhou

All seminars will be conducted in English. If you are interested in this seminar, please click the following link to register:


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