As the U.S. economy continues its decline into recession, more workers are being laid off. Of course U.S. citizens as well as foreign nationals are affected by the economic downturn, but many foreign temporary workers are the first to be laid off when cuts are made. Many H-1B nonimmigrant workers wonder what they can do when they have lost or are about to lose their jobs. Many employers, forced to lay off valuable employees want to do so in ways that will cause them as few immigration problems as possible. Employers understand that they may be rehiring these same employees during the next upturn in the economy. Termination From Employment H-1B status, just as other types of nonimmigrant status, automatically ends with the termination of H-1B employment, whether the worker quits or is terminated. At this time, there is no grace period or other special consideration given to workers terminated because of the economic slowdown. Let me repeat that at this time, there is no grace period. An H-1B worker who is out of status even by a single day is ineligible for an extension of stay or change of status and is subject to removal proceedings. The INS can, however, forgive the failure to maintain status in certain limited circumstances. Specifically, the INS has discretion to approve an untimely-filed request for extension or change status if the delay was due to "extraordinary circumstances" and the worker meets other specific requirements.INS regulations are pending that may change this limitation and grant employees a grace period when they are laid off. But at this time, there is no grace period. H-1B Portability The H-1B portability provision is part of the American Competitiveness in the Twenty- first Century Act of 2000 [AC21]. Under section 105 of AC21, an H-1B nonimmigrant can begin working for a new H-1B employer upon the filing of a nonfrivolous petition by the new employer, as long as the nonimmigrant was lawfully admitted to the United States and has not engaged in unauthorized employment since his or her lawful admission. The new employer must file the petition before the Adate of expiration of the period of stay. The portability provision is codified in the Immigration and Nationality Act. Several questions arise and have yet to be answered. When is the "date of expiration of the period of stay"? The last day of the admission period as described on the I-94 or Approval Notice? Or is it the day the nonimmigrant worker stopped work? We are waiting for INS regulations to answer these and other questions. Some predict that the INS will end up granting a grace period for H-1B workers who are laid off, but we will just have to wait and see. Terminated H-1B Workers Who Do Not Find Employment Unless the terminated H-1B nonimmigrant worker files a new petition or leaves the U.S., the alien goes out of status and is thereby deportable. Moreover, if the individual remains in the United States after the expiration date on the I-94 card or the date the INS determines the individual to be out of status, A unlawful presence starts accruing. Under current law, a short period of unlawful presence only requires an alien to depart the Unites States before obtaining a new visa status and reentering. A period of unlawful presence that exceeds 180 days can result in severe immigration penalties, including being barred from the returning to the United States fore three or more years. Thus, for a terminated nonimmigrant worker, time is of the essence. The worker should take immediate action to either secure new employment (and file a new petition) or to depart the U.S. as soon as possible after termination to avoid these negative consequences. By Robert B. Spiro and Murali Bashyam, Attorneys, Bashyam & Spiro, LLP, concentrating exclusively in matters involving Immigration and Nationality Law, (919) 833-0840. |
