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How a layoff affects a workers visa

Att. James G. Beirne

DURING this economic downturn, layoffs have become a sad reality. Employers are taking unprecedented steps to survive. While facing a potential layoff is unsettling for anyone, it is particularly challenging to an H-1B worker. An H-1B worker must prepare themselves for not only a loss of income, a lack of unemployment benefits, but also the alarming possibility of losing their visa status.

Your Employer Must Pay Your Way Home

If you are an H-1B worker and intend the leave the U.S., it is important to be aware that your employer is obligated to pay your way home. This provision was set forth in your original H-1B Petition and Labor Condition Application.

Obligation to Notify INS

You are obligated to notify the INS immediately of any material changes to the terms and conditions of your employment. You should send a letter to the same INS Service Center that initially provided approved your H-1B petition.

When Do I Lose My Status if I Have Been Laid Off?

If you have a H-1B visa, you will lose your status the day you stop working. This hold true whether you are laid off, fired or quit. It is important to know that receiving a severance salary or what money was left on payroll does not qualify as a valid status period.

What Do I Need To Know if I am Being Laid Off?

If you know that you are being laid off, it is important to act quickly. It is best to contact an immigration attorney to be sure that you are taking the correct course of action. You may be able to change your status to another non-immigrant status such as B2 or F1. If you immediately find another job, you can have that employer apply for a transfer of your H-1B status. Under the current law, a worker can start employment with a new worker as soon as their H-1B transfer petition is submitted to INS.

How Long is the “Grace Period” After Being Laid Off?

Technically, there is not a grace period. It is important to note that the amount of time that a worker can stay in the U.S. after being laid off is not defined in the regulations.

There has been a lot of confusion about the existence of a ten-day grace period for an H-1B worker who has been laid off. This grace period stems from a regulation (8 C.F.R. section 214.2 (h)(13)(I)(A). This regulation however pertains to H-1B workers who are leaving the United States, not to anyone who is changing their nonimmigrant status or changing employers.

If you have been laid off, you are probably disheartened and are not sure what your next step should be. It is important to speak with an immigration attorney who can best advise the best course of action for you.

Contact the Law Offices of James G. Beirne for assistance. Our staff of experienced immigration lawyers can assist you in all areas of immigration, including deportation issues, visa extensions, student visas, and naturalization.  Contact one of our convenient locations to learn more. We have locations in Glendale (818) 552-4500, Cerritos (562) 865-4480 and West Covina (626) 262-4446.

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An active member of the State Bar of California and the State Bar of Nevada, James G. Beirne is also a member of the highly respected American Immigration Lawyers Association and Los Angeles County Bar Association Immigration Section. He is admitted to practice before the Ninth Circuit Court of Appeals, all federal district courts in California and Nevada, California state courts, and Nevada state courts. Mr. Beirne has represented clients in numerous immigration cases. His offices are located at 520 E. Wilson Ave., Suite 110, Glendale, CA 91206, and 17215 Studebaker Rd., Suite 380, Cerritos, CA 90703, with telephone numbers (818) 552-4500; (562) 865-4480; and (866) 903-4522. He also has offices at 2640 E. Garvey Ave., Suite 104, West Covina 91791, with tel. no. (626) 262-4446.

(Disclaimer: This article is for informational purposes only. Results may vary depending on the facts of a particular case. We make no prediction, warranty or guarantee about the results of any case, nor do we assume any legal liability for the completeness of any information and its impact on the results of any case. Each case is different and results depend on the facts of each case. Consult with and retain counsel of your own choice if you need legal advice.) â– 

 

 

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