The INS law's contradictory interpretation at times has seen ripples of worries in the minds of people with technical jobs. This article tells you about the possible steps of action when you have been laid off.
A hand at understanding the law would help one visualize the true picture. The confusion originates from the regulation (8 C.F.R. ?214.2(h)(13)(I)(A)):
"A beneficiary shall be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. The beneficiary may not work except during the validity period of the petition."
The mentioned regulation has been interpreted as that a laid off worker can apply for a new job in ten days or else would be deported. But the truth is that the regulation is applicable only for those H-1B workers who have to leave the U.S., but does not affect the case of workers who change employers or are with non-immigrant status.
The laid off H-1B worker is allowed to request to change his status to some other non-immigrant category if his H-1B petition has not been revoked. This can be done even while he is seeking employment at other firms. The law does not define the time that a laid off H-1B worker may stay for while seeking a new job. INS officials suggest submitting the same within 30-60 days but those are mere suggestions, and have no correlation with the law.
The new employer of the worker submits an H-1B petition to the INS requesting a change of employers when the same happens. It is advisable to act wisely by asking the employer to submit the application without wasting a moment when an offer of employment is made.
The H-1B worker can begin work with the employer under AC-21, in accordance with the H-1B cap law enacted during October 2000, once the H-1B transfer petition has been submitted to the INS. The same can be approved or else, H-1B petition approved but the application for changing employer in US denied if the INS feels that the layoff period was a little extra long. Issue of a Notice of Approval that allows the worker to leave the U.S. and apply again, for a new H-1B visa from some other country follows the second case. Another scenario is when the old H-1B visa's expiry is still due. Then, the worker can travel abroad and return using the same H-1B visa and the actual Notice of Approval (form I-797) issued for the newer H-1B petition which was approved.
On failure to obtain another employment quickly, application may be filed and status changed from H-1B to either a business visitor (B-1) or a tourist (B-2) while the worker searches a job. On getting the job, the new employer can get the status changed to H-1B again.
The dilemma associated with the layoff law does not end with it and another special case exists for the laid off/terminated workers who are already beneficiaries of a visa petition for an approved employment. The new employer should submit an RIR labor certification and an EB visa petition for him so that the worker can use the previously approved priority date.
In case of a laid-off/terminated worker with an EAD, job loss does not affect the validity of the EAD and he can work for a new employer immediately but the employer, again, needs to submit the RIR labor certification along with a visa petition for him urgently. But the denial of the application for adjustment of status invalidates the EAD.
A key point to remember is that the applications to adjust the status of persons with allowed EB petitions take a few months for processing. But a new labor certification's and visa petition's approval might not be possible unless the adjudication of the application filed for adjusting the status. Then, the worker's employer should file another H-1B petition despite he still having an EAD. The same rules as when the worker?s H-1B petition was approved but change of employer application rejected holds in this case.
When the application to adjust the status is pending for more than 180 days before the lay off, the worker, if chooses a similar new job or occupation, may switch jobs without affecting his application for the green card.
This detailed write up should have cleared all the incorrect notions regarding the time at hand for a laid-off or terminated H-1B worker. So, the laid off worker can act on the following plan in such a situation.
? Apply for a status change to B1/B2 within 30 days of layoff to stay legal and back your application with an itinerary plan and financial proof in the form of bank statement to support your stay. The itinerary should disclose your intentions as to leave US when B1/B2 status ends. A letter from your lawyer mentioning the necessity to stay to manage your responsibilities (both financial and material ) before leaving should also be provided to support your application.
? Search a new employer and once found, ask him to follow the already mentioned details.
The second part of the plan of action is to hold a grip of yourself as you look for a new job. The search should be determined and disciplined and at times, also with a humorous sense. A few points to note are mentioned below.
? Update your resume regularly even when employed securely. Use verbs which symbolize action and keywords and mention all new skills gained.
? Display your skills in the form of material achievements for the employer. Example might be cost cutting by USD X through automation of delivery system to deposit directly.
? Do not fluff up the resume with experience of skills that you cannot defend or justify. The interview is a chance to prove your understanding of the industry and the implementation of specific processes and operations as desired by the to-be employer.
? Use networking to get referrals from friends in companies and extend your network beyond the employer by seeking contacts of recruiters and/or HR personnel. You become a known commodity to the company when a friend refers you in his working environment and you have a better opportunity to impress the employer.
? Develop new skills and add knowledge to the existing ones. Use the internet to know about newer skills in your field of work.
? Pray to God for being knowledgeable, clear and fluent during rounds of interviews instead of worrying in your cubicle.
? Make a good impression in the interview when selected. Do not just be professional but also personable. Recruiters prefer employees with good personality who can talk about various aspects of lives other than their technical skills. The length of your answers does not matter but be sure; they are meaningful and try asking sensible and relevant questions in the end.
? Avoid depression and tension and try elevating your mood with good company of friends and relatives who might have been avoided so far due to job demands or other deployment problems.
? If you want to move back to your country to use your skills and work closer to family and/or friends, consider doing that. You were here for moving ahead in career after completing your education; decide what you want to do in life.
Anyways, keep faith in God and hard work. The best will happen and fate would ensure success as long as it can last.
A hand at understanding the law would help one visualize the true picture. The confusion originates from the regulation (8 C.F.R. ?214.2(h)(13)(I)(A)):
"A beneficiary shall be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. The beneficiary may not work except during the validity period of the petition."
The mentioned regulation has been interpreted as that a laid off worker can apply for a new job in ten days or else would be deported. But the truth is that the regulation is applicable only for those H-1B workers who have to leave the U.S., but does not affect the case of workers who change employers or are with non-immigrant status.
The laid off H-1B worker is allowed to request to change his status to some other non-immigrant category if his H-1B petition has not been revoked. This can be done even while he is seeking employment at other firms. The law does not define the time that a laid off H-1B worker may stay for while seeking a new job. INS officials suggest submitting the same within 30-60 days but those are mere suggestions, and have no correlation with the law.
The new employer of the worker submits an H-1B petition to the INS requesting a change of employers when the same happens. It is advisable to act wisely by asking the employer to submit the application without wasting a moment when an offer of employment is made.
The H-1B worker can begin work with the employer under AC-21, in accordance with the H-1B cap law enacted during October 2000, once the H-1B transfer petition has been submitted to the INS. The same can be approved or else, H-1B petition approved but the application for changing employer in US denied if the INS feels that the layoff period was a little extra long. Issue of a Notice of Approval that allows the worker to leave the U.S. and apply again, for a new H-1B visa from some other country follows the second case. Another scenario is when the old H-1B visa's expiry is still due. Then, the worker can travel abroad and return using the same H-1B visa and the actual Notice of Approval (form I-797) issued for the newer H-1B petition which was approved.
On failure to obtain another employment quickly, application may be filed and status changed from H-1B to either a business visitor (B-1) or a tourist (B-2) while the worker searches a job. On getting the job, the new employer can get the status changed to H-1B again.
The dilemma associated with the layoff law does not end with it and another special case exists for the laid off/terminated workers who are already beneficiaries of a visa petition for an approved employment. The new employer should submit an RIR labor certification and an EB visa petition for him so that the worker can use the previously approved priority date.
In case of a laid-off/terminated worker with an EAD, job loss does not affect the validity of the EAD and he can work for a new employer immediately but the employer, again, needs to submit the RIR labor certification along with a visa petition for him urgently. But the denial of the application for adjustment of status invalidates the EAD.
A key point to remember is that the applications to adjust the status of persons with allowed EB petitions take a few months for processing. But a new labor certification's and visa petition's approval might not be possible unless the adjudication of the application filed for adjusting the status. Then, the worker's employer should file another H-1B petition despite he still having an EAD. The same rules as when the worker?s H-1B petition was approved but change of employer application rejected holds in this case.
When the application to adjust the status is pending for more than 180 days before the lay off, the worker, if chooses a similar new job or occupation, may switch jobs without affecting his application for the green card.
This detailed write up should have cleared all the incorrect notions regarding the time at hand for a laid-off or terminated H-1B worker. So, the laid off worker can act on the following plan in such a situation.
? Apply for a status change to B1/B2 within 30 days of layoff to stay legal and back your application with an itinerary plan and financial proof in the form of bank statement to support your stay. The itinerary should disclose your intentions as to leave US when B1/B2 status ends. A letter from your lawyer mentioning the necessity to stay to manage your responsibilities (both financial and material ) before leaving should also be provided to support your application.
? Search a new employer and once found, ask him to follow the already mentioned details.
The second part of the plan of action is to hold a grip of yourself as you look for a new job. The search should be determined and disciplined and at times, also with a humorous sense. A few points to note are mentioned below.
? Update your resume regularly even when employed securely. Use verbs which symbolize action and keywords and mention all new skills gained.
? Display your skills in the form of material achievements for the employer. Example might be cost cutting by USD X through automation of delivery system to deposit directly.
? Do not fluff up the resume with experience of skills that you cannot defend or justify. The interview is a chance to prove your understanding of the industry and the implementation of specific processes and operations as desired by the to-be employer.
? Use networking to get referrals from friends in companies and extend your network beyond the employer by seeking contacts of recruiters and/or HR personnel. You become a known commodity to the company when a friend refers you in his working environment and you have a better opportunity to impress the employer.
? Develop new skills and add knowledge to the existing ones. Use the internet to know about newer skills in your field of work.
? Pray to God for being knowledgeable, clear and fluent during rounds of interviews instead of worrying in your cubicle.
? Make a good impression in the interview when selected. Do not just be professional but also personable. Recruiters prefer employees with good personality who can talk about various aspects of lives other than their technical skills. The length of your answers does not matter but be sure; they are meaningful and try asking sensible and relevant questions in the end.
? Avoid depression and tension and try elevating your mood with good company of friends and relatives who might have been avoided so far due to job demands or other deployment problems.
? If you want to move back to your country to use your skills and work closer to family and/or friends, consider doing that. You were here for moving ahead in career after completing your education; decide what you want to do in life.
Anyways, keep faith in God and hard work. The best will happen and fate would ensure success as long as it can last.
:Gus Taperman
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