The recent economic boom, especially in the high-technology sector, has produced a large presence of foreign national workers in the United States. Typically, such workers enter with H-1B or L-1 temporary work visas. Many have chosen to undergo permanent residence processing. However, the recent downturn in the economy has resulted in numerous reductions in force, resulting in layoffs and job terminations for many of these foreign nationals.
When laid off, these foreign national workers incur severe legal consequences with regard to their current immigration status and, in many instances, with regard to their permanent residence processing. The following are some of the more frequently-asked questions and answers in such situations:
Q. What Happens To My H-1b Or L-1 Work Visa Status?
A. The current legal position of the United States Immigration & Naturalization Service (INS) is that the alien’s H-1B or L-1 status terminates on the effective date of the layoff or termination of employment, and that there is no grace period for the alien to remain in such legal status after the effective date of employment termination.
For example, if the notice of layoff states that employment will terminate on a specific date, such worker’s H-1B or L-1 work visa status will terminate on such date. This is so even though the alien may receive severance pay or benefits lasting beyond such date.
However, the INS is in the process of softening its current position. Recently, the INS announced that it may soon publish a regulation granting an H-1B laid-off foreign national a period of up to 60 days from the effective date of employment termination to remain in the United States, and during such period, the worker can find a new employer and begin working when the new employer has filed a new H-1B petition for the worker. This benefit would not apply to a foreign national with an L-1 status.
Q. What Can The Foreign National Do To Remain In Legal Status?
A. There are several strategies that the foreign national can pursue to remain in the United States after a layoff.
Despite the current INS position with regard to one’s status upon termination of employment, the INS still has discretionary authority to approve a foreign national’s request to remain in the United States to continue employment with another employer even though the new employer’s petition was filed after the date of the foreign national’s layoff. Such petition filings made within 30-60 days from the date of the foreign national’s layoff have been approved. Where the new employer’s petition has been approved but INS has denied the alien’s request to extend stay, the foreign national simply leaves the United States and applies for a new nonimmigrant work visa at a U.S. Consul and returns to begin the new employment.
Where a new employment is not immediately available, the foreign national may apply to change his/her current nonimmigrant work status to that of another status to attend school, remain as the dependent spouse of the other spouse who holds a temporary work visa status for employment, or to simply remain in the United States as a temporary visitor for pleasure. Such a filing should be made on or before the effective date of employment termination. The foreign national will be allowed to remain legally in the United States during the pendency of such an application. Subsequently, should the foreign national find a new employment opportunity, the new employer may petition for the foreign national worker and such worker may be able to remain legally in the United States to accept such new employment. A laid-off foreign national worker who had previously held the H-1B nonimmigrant work status may begin such new employment upon the new employer’s filing of a petition with the INS.
Q. What Happens To The Foreign National’s Permanent Residence Case That Was Initiated By The Employer?
A. Where the foreign national has filed an Application to Adjust Status on the basis of the employer’s approved I-140 Immigrant Visa Petition and more than 180 days has elapsed from the date of filing and such application remains unadjudicated, termination of employment after such 180 days will have no adverse impact if the foreign national obtains new employment in the same or similar occupation as that described in the approved Immigrant Visa Petition. The foreign national will be required to notify the INS that they no longer intend to enter into the employment with the petitioning employer who sponsored them, and should provide a letter from the new employer describing the foreign national’s new employment, including job title, brief job description, and the salary. It is unclear as to what impact a layoff within 180 days from the date of filing will have on approvability of the Application to Adjust Status. Soon-to-be-published INS regulations may address this issue.
However, if the foreign national is laid off before the filing of the Application to Adjust Status, the foreign national worker may not be able to legally file for adjustment of status. In this case, the foreign national is no longer intending to work for the employer as employment no longer exists.
Though the underlying approved labor certification and Immigrant Visa Petition will no longer be valid to support the filing of the Application to Adjust Status, the foreign national will be able to retain the priority date established by the filing of the Labor Certification Application.
Q. What If The Foreign National Simply Remains In The U.S. And Does Nothing?
A. The foreign national will become an overstay alien, which is a ground for removal from the United States by the INS. In addition, the foreign national may accrue unlawful presence that will result in the inability to be able to apply for and obtain a visa for reentry into the United States. Depending upon the length of accrued unlawful presence, the foreign national may be subject to a 3 or 10-year bar to being able to obtain another visa. Moreover, such an overstay foreign national will only be able to apply for a nonimmigrant visa at a U.S. Consul located in his/her country of nationality as a general rule.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.