Practical Immigration Consequences for Foreign Workers in Today’s Economy

This article will address various scenarios as posted by the United States Citizenship and Immigration Services in connection with one working or studying in the United States.  The focus is on changed employment circumstances and how to deal with them.

1. Laid Off H-1B Employees With Advance Notice - What if you are an employee in H-1B status and you receive advance notice that you will be laid off before your validity period ends?  Can you change employers?

USCIS Response:  Prior to being laid off, another qualified H-1B employer may file a Form I-129, Petition for a Nonimmigrant Worker, on your behalf with USCIS.  In order to change employers without having to depart the United States, the I-129 petition should have been filed prior to the termination of your job and you must have been maintaining valid H-1B status.  If the I-129 petition is filed after your dismissal, you may have to return overseas to process your H1B visa for the new employer.

2. Laid Off H-1B Employees Without Advance Notice - What if you are an employee in H-1B status and you are laid off with no advance notice before the end of the validity period? Can you begin working (or port to) another job with a different employer?

USCIS Response:  An H-1B nonimmigrant is admitted to be employed by the sponsoring H-1B petitioner.  If the employment ends, this condition is no longer satisfied and the individual is no longer in a lawful nonimmigrant status and may be subject to removal proceedings.  Therefore, the terminated H-1B nonimmigrant in this scenario may not be able to port to another employer, subject to certain discretionary exceptions. 

Depending on the individual's circumstances, the H-1B worker may be eligible to remain in the United States due to a request for a change of status or for extension of stay that is filed while that individual is maintaining H-1B status, or on account a pending adjustment application.  In deciding whether to approve a change or extension of status for any nonimmigrant who has fallen out of status, however, USCIS may exercise discretion on a case-by-case basis to grant the extension or change of status despite the failure to maintain status.

There is no automatic 10-day or other grace period for terminated employees holding H-1B status, so once the individual is no longer in a lawful nonimmigrant status, he/she usually must depart from the United States.

3. Laid Off Employees in Other Classifications - What if you are in some other nonimmigrant classification, such as E (treaty investor), L (intra-company transferee), O (extraordinary ability), or P (entertainer, athlete), and you are laid off?

USCIS Response:  Similar to H-1B nonimmigrants, E, L, O and P nonimmigrants are no longer considered to be maintaining valid status as of the day their petitioned for employment has been terminated.  The law and regulations do not provide a grace period for E, L, O, and P nonimmigrants whose employment has been terminated, so once the individual is no longer in a lawful nonimmigrant status, he/she usually must depart from the United States.

Depending on the individual circumstances, he/she may be eligible to remain in the United States due to a request for a change of status or for extension of stay that is filed while that individual is maintaining status, or on account of a pending adjustment application.  In deciding whether to approve a change or extension of status for any nonimmigrant who has fallen out of status, however, USCIS may exercise discretion on a case-by-case basis to grant the extension or change status despite the failure to maintain status.

4. H-1B Validity Periods - What if the validity period of my H-1B status ends and my employer does not file an extension?

USCIS Response:  USCIS regulations allow for an individual to be granted, upon admission to the U.S., up to 10 additional days after the validity of their H-1B period ends.  This period of up to 10 days is intended to allow the individual to wrap up his or her affairs prior to departing the United States.  See 8 CFR 214.2(h)(13)(i)(A).  However, such persons are not permitted to work after the validity period of the petition (i.e. you are not authorized to work during the 10-day grace period), unless they have a pending extension of status petition or have other valid work authorization.

5. Employer Requirements - What are the requirements for an employer who has laid-off an employee in H-1B status?

USCIS Response:  U.S. employers are required to notify USCIS if there has been a material change in the terms and conditions of the H-1B nonimmigrant's employment, including if the alien has been laid-off or otherwise terminated.  See 8 CFR 214.2(h)(11)(i)(A).  Once USCIS has received notification of the termination, it may revoke the approval of the petition.  If USCIS decides to revoke the petition, it will communicate that decision to the petitioner.

Additionally, the employer will be liable for the reasonable costs of return transportation of the alien to the alien's last place of foreign residence if the alien is dismissed from employment by the employer before the end of the period of authorized admission period.  If the beneficiary voluntarily terminates his or her employment prior to the expiration of the validity of the petition, the alien has not been dismissed.  See 8 CFR 214.2(h)(4)(iii)(E).

6. TARP Funding - How will employer recipients of TARP funding be affected if they want to hire H-1Bs?

USCIS Response: On February 17, 2009 the President signed into law the Employ American Workers Act (EAWA) contained in the stimulus bill.  See Pub. L. No. 111-5, Div. A, Title XVI, § 1611.  This Act requires employers who received funds through the Troubled Asset Relief Program (TARP) or under section 13 of the Federal Reserve Act (covered funding), to be treated as H-1B dependent employers.  Consequently, employers must certify to the Department of Labor that:

·         The employer has taken or will take good faith steps meeting industry-wide standards to recruit U.S. workers and will offer compensation that is at least as great as those offered to the H-1B nonimmigrant.  U.S. workers are defined as U.S. citizens or nationals, lawful permanent resident aliens, refugees, asylees, or other immigrants authorized to be employed in the United States (i.e., workers other than nonimmigrant aliens)

·         The employer has offered or will offer the job to any U.S. worker who applies and is equally or better qualified for the job that is intended for the H-1B nonimmigrant

·         The employer will not displace any similarly employed U.S. worker within the period beginning 90 days before and ending 90 days after the date of filing a petition for an H-1B nonimmigrant supported by this application. A U.S. worker is displaced if the worker is laid off from a job that is essentially the equivalent of the job for which an H-1B nonimmigrant is sought

·         The employer will not place an H-1B worker to work for another employer unless it has inquired whether the other employer has displaced or will displace a U.S. worker within 90 days before or after the placement of the H-1B worker.

The EAWA applies to any Labor Condition Application (LCA) and/or H-1B petition filed on or after Feb. 17, 2009, involving any employment by a new employer, including concurrent employment and regardless of whether the beneficiary is already in H-1B status, unless otherwise noted below. The EAWA also applies to new hires based on a petition approved before Feb. 17, 2009, if the H-1B employee had not actually commenced employment before that date. 

The EAWA does not apply to: (1) a petition to extend the H-1B status of a current H-1B employee with the same employer, or (2) a petition seeking to change the status of a current U.S. work-authorized employee to H-1B status with the same employer. Moreover, an employer who has repaid its covered funding obligations prior to filing a new H-1B petition is no longer subject to EAWA requirements.

7. Dependents - How are my dependents affected if I lose my job?

USCIS Response:  Family members of nonimmigrant workers who derive their status as dependents lose that status when the principal nonimmigrant worker's status ends.  Therefore, if your status ends as a result of losing your job, your dependents will also lose their immigration status.

8. F-1 Students and OPT - What if you are an F-1 student with an optional practical training (OPT) authorization?

USCIS Response: F-1 academic students may seek post-completion Optional Practical Training (OPT) to enable them to obtain valuable work experience directly related to their course of study.  F-1 academic students in the Science, Technology, Engineering, and Mathematics fields (STEM) may seek a one-time extension of their post completion OPT for an additional 17 months.  Students granted post-completion OPT and STEM OPT are issued an Employment Authorization Document (EAD), which is not employer-specific; however, in order to maintain their F-1 status, there are limits on the amount of allowable periods of unemployment. Students on post-completion OPT may not accrue more than 90 days of unemployment in the aggregate.  Students on STEM OPT are allowed an additional 30 days of unemployment, so they may not accrue more than 120 days of unemployment in the aggregate. See 8 CFR 214.2(f)(10)(ii)(E).  An F-1 student who exceeds the allowable periods of unemployment is out of status and must seek reinstatement in order to use any remaining periods of available post-completion OPT or STEM OPT.  F-1 students do not need to apply for another EAD when they find a new job, so long as they have not fallen out of status by exceeding the allowable periods of unemployment, or have not otherwise violated their F-1 status.   Students should consult with their Designated School Official (DSO) if they have any additional questions or concerns about their status.

For further information or questions you may have, please do not hesitate to contact The Law Offices of Michael H. Markovitch.