US Immigration News & Commentary

It’s pretty clear that the economy is bad with only a few holdouts are denying it at this point.

So what to do when you are on an H1B visa and you get laid off?
Well first of all don’t panic. You likely have a visa that lasts for years at this point so you are NOT accruing unlawful presence even though you ARE out of status.
What in the world does that mean?

Well, simply put too much unlawful presence means that you will not be allowed back into the US for many years. Specifically, 180 days to 365 days of unlawful presence means that you will be barred from the US for three years should you leave and attempt to return. Anything over a year results in a 10 year bar to reentry should you leave the United States.
But I’m out of status so I’m accruing unlawful presence right?
No, not at all. The date on your I-94 rules your world. So if you still have time on your I-94 then you are not accruing unlawful presence until that date has passed.
GREAT! I’ll just stay!

Well the bad news is that you ARE deportable since you are out of status so that’s a really bad idea! Additionally, you can’t change your status to any other status once you are laid off since you are no longer in valid non-immigrant status. That means you’ll have to leave if you try to change your status.

So what do I do??

I can’t answer that question for you. However, I can say that you aren’t supposed to be here (and I would never advocate that you violate any immigration laws) BUT if you quickly find a new and appropriate H1B visa sponsor you MAY get lucky and the USCIS MAY allow you to change employers without leaving. It’s certainly happened before and, arguably, you getting laid off isn’t your fault and you and your new employer shouldn’t be punished for you getting laid off. In other words, you shouldn’t have to spend the money to leave the US, get your new H1B issued, and then reenter costing you and your employer time and money.

The likely worst case scenario in this instance is the USCIS issuing you an H1B but making you leave to get your new visa stamped.

But you’ll have to find an appropriate job and beg for mercy from one of the most merciless agencies in the United States!

Good luck!

There are a limited number of ways to immigrate to the United States. The most common way is through a family category. The second most common way is through employment.

One of the most common paths to residency that does not involve immigrating through a family member is from student to OPT to H1B to permanent resident. It is important to understand that employment based permanent residency is for a job in the future. In other words, this is a prospective position. This means that there are cases where an employee may work for other employers while a different employer petitions for their residency.

There are a variety of different employment categories under which a person may seek residency. Briefly they include:

1st: Priority workers – Aliens with extraordinary ability in the sciences, arts, education, business or athletics; outstanding professors and researchers; multinational executives and managers.

2nd: Members of professions holding advanced degrees or aliens of exceptional ability.

3rd: Professionals, skilled, and other workers.

4th: Special immigrants.

By far the most common categories utilized by intending immigrants are the second and third preference categories. With limited exceptions the employer will have to test the U.S. job market to show the U.S. Department of Labor that there are no qualified U.S. workers available for the position in the geographic area of employment. A U.S. worker is defined as a U.S. citizen or lawful permanent resident. Individuals on non-immigrant visas are not considered “U.S. workers” for the purposes of the test of the labor market.

The employer will have to run ads in a variety of media such as newspapers, journals, internet job sites, state job banks, etc. These ads have a limited shelf life and, assuming that no qualified U.S. worker comes forward, the employer will have to file a request for labor certification with the U.S. Department of Labor in under 180 days from the date the first ad was placed or the employer will have to run the ad again if it is needed to satisfy their burden under the law.

Once the labor certification is filed the U.S. Department of Labor will certify the case, deny the case, or audit the case to make sure that all the appropriate steps were followed.

Assuming the case is certified the employee can begin the immigrant visa process with the U.S. Citizenship and Immigration Services. This is where the category of employment is important. The availability of visas for each category fluctuates and the U.S. State Department Visa Bulletin must be reviewed to determine the appropriate path for the next step.

If the visa category is current (indicated with a “C”) then the employee can file the I-140 visa petition and I-485 residency petition simultaneously. A work card application (I-765) and travel permission request (I-131) can accompany the I-485.

If the visa category is not current, showing a date rather than a “C”, then only the I-140 can be filed. The filing of the I-140 does not grant the beneficiary any status and no work card is available. Unless the prospective employee has independent basis for staying in the United States (e.g. an OPT or H1B) they may have to leave until their immigrant petition is approved and a visa number becomes available.

Fortunately, at least for those individuals on H1B visas (a very common scenario), the H1B visa can be extended beyond the normal 6 year limit if the labor certification was filed more than a year before the end of their 6th year. The H1B visa can be extended indefinitely until the labor certification and immigrant visa petition process is complete. Unfortunately this is a process which can take many years.

So does the push back.

Religious and labor leaders called upon Congress and President-elect Obama to pass a comprehensive immigration package this year and said that the U.S. economy could not be restored without legalizing the nation’s undocumented immigrants.

“Immigration reform is a necessity in order to fix the American economy,” John Wilhelm, president of Unite Here’s hospitality-industry division, said Thursday during a national teleconference call on immigration reform. The New York-based group represents more than 450,000 workers around the U.S.

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