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January 28, 2009 > How to remain work authorized in the U.S. through layoffs?

How to remain work authorized in the U.S. through layoffs?

Submitted By Barbara Wong

In today's economy, layoffs seem to more common than ever, and it's as though every other person you speak to either knows someone who has been laid off, or is laid off himself. Normally, the first thing you might want to do, depending on whether you have severance, is to apply for unemployment. But what if you're currently employed in the U.S. as an H-1B nonimmigrant? Losing a job may mean much more than loss of wages, it could mean that you need to return to your home country. What may complicate things even more is if you have a family and small children, and your children are enrolled in school.

The first thing to remember is that as an H-1B nonimmigrant, you do not have a "grace period", although practically speaking, it is likely that if you secure new employment immediately, the U.S. citizenship and immigration service (USCIS) office that adjudicates the H-1B petition filed by your new employer will not deny the request to allow you to extend your stay and remain in H-1B status.

But what if you've been searching, but it hasn't been so easy to secure new employment? Well, you will need to evaluate whether your status in the U.S. will allow you to immediately assume new employment in the U.S., or if you have no other basis to remain in the U.S., whether you will need to take the time to change your status to "visitor" status while you prepare to depart the U.S.

If you're in H-1B status, you may need to file an application for a change of status to B-2 visitor status to wrap up your affairs and prepare for departure from the U.S. The benefit of filing for a change of status to B-2 is that you have assurance that you are in compliance with U.S. immigration laws. The USCIS views a timely filed change of status application as a basis for you to remain in the U.S. while the application is pending. So for example, if you were laid off on November 1, and you timely file for a change of status to B-2 and ask for three months to remain in the U.S. to allow your children to finish out the semester, and your family to wind up your affairs, barring any fraud or misrepresentation, the U.S. government should approve your application.

The drawback to this process is that should you secure new employment while the application is pending, it is no longer so easy for you to seamlessly transition to a new employer in valid H-1B status. Depending on the duration of your unemployment and whether the B-2 application for change of status is approved, you may need to delay beginning your new job until your new employer is able to secure H-1B status for you.

Although this is a main consideration for folks in H-1B and H-4 status, some foreign employees are "transferred" to the U.S. in L-1 status because they were employed with the foreign entity for one year prior to the transfer. L-1 employees, when laid off or terminated, do not have the same ease in transitioning to new employment immediately as do H-1B for profit workers. The option to change status to B-2 still exists, but the ability to start new employment in the U.S. will be depend on specific facts, including whether they have ever been in the U.S. in H-1B status previously and for how long.

Given the tumultuous changes in today's global economy, keeping abreast of your options to remain work authorized in the U.S. is highly important. Although it may be the last matter you want to contend with, knowing what your options on should you lose your job in the U.S. will affect your ability to return to the U.S. and secure employment in the future.

The changes we expect to see in U.S. immigration matters will no doubt be affected by the world economy, but the opportunities that abound in the U.S. will also continue to be a beacon to nations worldwide.

Barbara Wong is a resident of Fremont, and practices U.S. immigration law at the law firm of Berry Appleman & Leiden LLP in San Francisco.

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