On Wednesday March 11, 2009, our law firm conducted a Webinar for non-immigrant and immigrant employees who have been laid off or think they may get laid off.  The topic of conversation was the impact a layoff would have an on employee’s immigration status.  The following are questions submitted by the Webinar participants.  We felt that providing our responses in a written format would be helpful to our Webinar participants, as well as to others who did not attend the Webinar.  Our answers should not be construed as legal advice since everyone’s case is different and details that may be missing in a question can impact the advice that is given. 

Q: I am here on an H1B and have gone though the process of getting a green card. In the meantime, I’m marrying an American citizen, should I continue to try and obtain a green card through work? 

A: That is a difficult question to answer without knowing more about where you are in the employment-based residency process.  However, we can tell you that the process of obtaining permanent residency through marriage to a U.S. citizen (as long as it’s a legitimate relationship) is usually much faster than obtaining residency through employment.  If you are in the beginning stages of your employment-based process, or if you are subject to per-country visa backlogs, you might be better off having your U.S. citizen spouse sponsor you for permanent residency. 

Q: What is the exact process to apply for an H1B transfer to another employer? (Cost/timing/exact steps, potential problems that the change to B1 status may cause, etc) 

A:  The company that wants to hire the H-1B employee will have to file a new H-1B application.  However, the case will not be subject to the H-1B cap.  Once the case is filed, the employee has the option of beginning work for the new employer while the case is pending.  Currently, an H-1B application takes between 4-6 months to process.  This can be expedited to within 15 days if the employer premium processes the case by paying an extra $1000 to the USCIS.  Attorney fees will vary, but the USCIS filing fee is $2320 for employers with more than 25 employees and $1570 for employers with less than 25 employees.   

If an H-1B employee has changed their status to B-1, the new employer can file for a change of status back to H-1B or file the case as a ‘consular processing’ case.  In the former situation, the employee could not work until the H-1B is approved.  In the latter, the employee would have to return to their home country upon approval of the H-1B application, obtain an H-1B visa (if they don’t have a valid H-1B visa stamp already) and return with the new approval notice in order to get back into valid H-1B status.  We recommend this approach since people on B-1 visitor should have the intention to returning to their home country, and returning to their home country to visa process should satisfy that requirement. 

Q: You mentioned H1B status expiring if you are terminated. If your H1B is valid till 2013,  can you go for a time as a Canadian visitor, then once finding a new job apply for a change of employer on the H1B and utilize the remaining eligibility? 

A: If you are a Canadian, you can return to Canada and re-enter as a visitor after termination. This would allow you to look for a job but you could not work.  Once you find a job, and if your new employer would like to sponsor you for H-1B status, you could obtain it (if otherwise eligible for H-1B status) for the remaining period of validity.  A person is generally allowed to hold H-1B status for up to six (6) years.  There are some exceptions to this six (6) year limitation.  

Q: On the topic of the TN, how can one qualify for the “Management Consultant” category? Can it apply to a position with a U.S. consulting firm? 

A:  To qualify for as a Management Consultant, you must be a Canadian citizen, have a job offer in a Management Consultant position, and have at least 5 years of consulting experience or at least a Bachelor’s degree in that field.  You can obtain more information on the TN visa at this link:  http://bashyamspiro.com/default.aspx?tabid=141.  TN status can now be issued for an initial period of up to 3 years. 

Q: Regarding an H-1B “gap”, if USCIS does not excuse the gap, does there need to be a new approval? Is this new approval subject to the annual cap? Or is it considered within the additional cap allocated for purposes such as this?  

A:  If the USCIS does not excuse the ‘gap’ between the termination date and your filing of a new H-1B transfer application, the USCIS can still approve the case.  If approved, you would have to leave the U.S. and return with a valid H-1B visa and your new approval notice to get back into valid H-1B status for your new employer.  The case will not be subject to the H-1B cap. 

Q: I am graduating soon (MBA) and will get an OPT which has a maximum of 3 months of unemployment time, after which I have to leave the US and go to Canada. Now, can I come back as a visitor and continue to look for jobs?  

A:  Yes. As a visitor, you can look for jobs if you have a professional background.  However, you cannot work. 

Q: What do I tell potential employers regarding my status, particularly when they aren’t willing to sponsor me? Can I say that they always hire me on a TN? I didn’t find a specific category for MBA’s under TN, but I was wondering if either Computer Systems Analyst (since I have an engineering degree) or Management consultant would work? 

A:  If you are a Canadian citizen, you can qualify for TN status if the employer is going to hire you in a position that is listed under NAFTA.  You can find a list of NAFTA positions and requirements at this link:  http://bashyamspiro.com/default.aspx?tabid=141.  

Q: Also, as a Canadian, what are my options once my OPT runs out?  Can I never reenter US labor force, until someone files an H1B (I believe that happens only on April 1^st) which means, I have to find someone who will file on April 1^st and wait for a few months to start working? Finally, can I legally look for a job, recruit or interview while on visitor status? 

A:  Yes, you can look for a job as a visitor but you cannot work.  As a Canadian, you would have to have an employer sponsor you for H-1B or TN status.  If you are a person of ‘extraordinary ability’ by being nationally or internationally known in your field, an employer could also sponsor you for O-1 status.  The O-1 and TN statuses are not subject to numerical limitations. 

Q: I have a TN status, but will be laid off. However I have a marriage-based green card case pending. Do the same rules for the employer-based process apply to me? Or can I stay and work with my EAD? 

A:  If you have a case pending based on marriage to a U.S. citizen, the same rules do not apply to you.  You can actually remain in the U.S. and work with your Employment Authorization Document (EAD) if you find another job. 

Q: My husband is on TD status and is currently a full time student since he is not allowed to work. Can he accept US paid –internships as a part of his college program? 

A:  It is unlikely since he is not in F-1 student status.  Regardless, we recommend that he speak with his International Student Office to get advice on this issue. 

Q: If I return to Canada and come back into the US as a visitor, how do I explain not having a Canadian address? My family had troubles coming in on TN when we told immigration officers that our house in Canada had been sold. 

A:  Unless you have evidence of your ties to Canada, you may have a problem entering the U.S. as a visitor.  Just tell the officer exactly what the situation is, and depending on the officer you may be allowed to enter the U.S. as a visitor.   

Q: If my H-1B I-94 expires in 2 years but I get laid off now, how long can my family and I stay in the US? We are Canadian. 

A:  The USCIS has a no ‘grace period’ rule for people in H-1B status when they are laid off.  Therefore, you cannot legally stay in the U.S. once you have been terminated from your job. 

Q: What is the approval rate of TN visas given the current economy? 

A:  So far, our office has not seen a direct impact between the economy and approval of TN status for our clients.   

Q: If you apply for a TN and they do not approve it at the border, can you still enter as a visitor? 

A:  That depends on the officer you are speaking with and the reason you need to enter the U.S. as a visitor.  In this situation, the officer might not believe that you are truly entering as a visitor and will not work.  

Q: Will/can they deny your reentry as a visitor if you leave and reenter immediately? 

A:  Any application for entry can be denied even in the best of circumstances.  So far, however, we have not seen this to be a big issue.  Just tell the truth to the officer on why you need to be in the U.S. as a visitor, how you have the intention of returning to your home country, and in most cases they will let you through. 

Q: If the application for E2 renewal is in process but the I-94 has expired during that time, do the I-94 penalties apply from date of expiration of visa/I-94 or from the date of the denial of renewal? 

A:  Unlawful presence for the 3 and 10 year bars will start accruing after the date of denial, or after 240 days if your extension has been pending that long. 

Q: When I-140 is approved and I-485 is pending, does that void the GC application as well?

A:  If you have an approved I-140 and your I-485 adjustment has been pending for over 180 days, the application can continue to be processed if you can find another job in the same or similar position to what was listed in your labor certification application.  This is called ‘porting’ under AC21. 

Q: My H1B approval notice has an I-94 on the form. Can we go by the date on this I-94 to determine our stay in the US?

A:  The expiration date on your I-94 will determine your stay in the U.S. as long as you are working in valid H-1B status.  If you are laid off or otherwise terminated from employment, you would be ‘out of status’ immediately upon termination or layoff. 

Q: What happens if I lose my job while I’m on EAD? 

A:  If you have an approved I-140 application and your I-485 adjustment has been pending for over 180 days, you can look for a new job and then work on EAD once you find one.  Your residency application can continue to be processed through the new employer. 

Q: I am going to the border to get a new TN visa myself, while my husband stays here in the US with my son (who is an American citizen). Should I take my husband’s passport with me to get his TD visa or does he have to be with me to get his new visa? 

A:  If you are extending your TN status, we recommend that your husband accompany you to the port-of-entry in this situation. 

Q: My Labor Certification and I-140 are approved and the I-485 is pending since Sept.2007, can I travel outside the country? 

A:  If you have a valid Advance Parole document (APD), you can travel outside the U.S. and return as long as you have not otherwise violated your status in the past. 

Q: I am on H1B and I’m a Canadian citizen, is it safe to leave by April 5^th? My I-94 expires in 2010 but my layoff termination date is April 5^th. 

A:  Yes, if you leave on the termination date, you would not be staying in the U.S. illegally. 

Q: How long can a person with a pending I-485 remain in the US unemployed or without a job? 

A:  If you have an employment based I-140 approved and I-485 pending for over 180 days, you can remain here until you find a job.  You must find a job in the same or similar position prior to final USCIS adjudication of your I-485 application. 

Q: If currently on TN visa, what is the best route to obtain a Green Card? Try to obtain an H1B then apply for a Green Card? 

A:  The TN is a single-intent status.  That means that you must have the intention of ultimately returning to your home country.  The H-1B is a dual-intent status, meaning that your intention to return home does not matter.  We therefore recommend that people switch from TN to H-1B before initiating the permanent residency process.  If you process a residency application while on TN status, you may have problems extending your status or may run into problems at the port-of-entry if an Immigration officer asks you questions relating to your pending residency application. 

Q: If you have a TN how long can you stay in the US before returning to Canada?  What are the options if I have a TN visa, and I’m terminated in February, but my I-94 expires in July? 

A:  There is no grace period after termination even if on TN status.  Therefore, you would legally have to return to Canada immediately. If you are employed, then you can remain here in TN status until the expiration date on your I-94 card.  Your TN status can also be extended if you wish to remain with your employer and continue working in the U.S. 

Q: What do I do now that I’ve been here for 2 weeks and I’m in the middle of the recruiting process with a company? It’s possible that I may get an offer within the next week.   Do I stay and go for the 2^nd interview or return home and come back for interview? 

A:  If you are in H-1B status, your new employer can file an H-1B transfer application for you even if there is a ‘gap’ in filing.  If the gap is short, the USCIS can excuse it at their discretion.  The longer the period between the termination date and the filing of another H-1B, the likelier it is that the USCIS will not excuse the gap and you would have to return to your home country and reenter with valid visa and your new approval notice to get back into H-1B status.   

These are tough times.  The country is in a recession and some people are losing their jobs.  If a U.S. citizen or a Lawful Permanent Resident is laid off, they need to worry about paying their bills and finding another job.  When a non-immigrant worker is laid off, they have more than just a job and bills to worry about – they need to worry about their immigration status and ability to remain in the United States as well.  Over the past few weeks, our law firm has been asked various questions by our clients that relate to their immigration status and corporate obligations after a lay off.    

Q:        When does H-1B status expire in a layoff?  Is there a grace period after being laid off?   

Unfortunately, the United States Citizenship and Immigration Service (USCIS) has been pretty clear that there is no grace period for an H-1B employee who is terminated.  Clients have heard rumors about a ’10 day’ grace period and often ask us whether this applies to them.  A 10 day grace period exists after the expiration of the H-1B petition.  The date the petition expires can be found on the employee’s I-797 approval notice.  

We would like to point out that the 10 day grace period only applies after the complete fulfillment of a person’s H-1B status.  Again, it does not apply to an employee who is terminated prior to the fulfillment of their status.  For example, if a company decides not to extend a worker’s H-1B status and lets it run out, the worker should have a 10 day period after the expiration date to settle their affairs in the U.S. or to find another job.  That is because the H-1B worker was not terminated and worked until the end of their H-1B period of stay.  Workers in H-1B status should make sure to compare the expiration date of their I-94 with the expiration date of their I-797 petition.  Sometimes port-of-entry officers already add 10 days to the expiration date on the I-94. If that is the case, then the worker’s status ends on that date and there is no grace period.

Q:        Does an H-1B worker have any other options if laid off?

Yes, the worker can file for a change of status to B-1 business visitor.  This application should be filed prior to the lay off while the H-1B non-immigrant worker is still ‘in status’.  If approved, the B-1 status allows a person to remain in the U.S. to look for another job.  However, they cannot work while holding B-1 status.  If a person holding B-1 business visitor status finds a job, the new employer must file an H-1B application and it must be approved before the person can begin working again.  This H-1B petition will not be subject to the H-1B cap since the worker has previously been counted against the cap.

Q:        What if an H-1B worker is laid off but expects to have another job offer in a few weeks?

The H-1B worker is considered to be ‘out of status’ if there is a gap between termination of employment and the filing of another H-1B application with a new employer.   During the adjudication of the new H-1B application, a USCIS officer in his/her discretion can excuse the gap if 1) the gap is not too long; 2) the worker has not otherwise violated their status; 3) not-excusing the gap will cause extreme hardship to the worker; and 4) the worker is not in removal proceedings.  If the USCIS officer does not excuse the gap, they can still approve the H-1B petition but the worker must leave the U.S. and return with the new H-1B approval notice and valid H-1B visa to get back into status.

Our office has often asked the USCIS to excuse gaps in filing under these circumstances with success.  Just make sure that the new H-1B filing is very up-front and honest about the termination of the H-1B worker’s prior employment and the reason for the delay in filing the new H-1B application.

Q:        What happens to a pending labor certification after a layoff? 

A labor certification is employer specific and job specific and cannot be transferred to another employer.  Therefore, it would become null and void after a termination.  If, however, the employer has the honest intention of re-hiring the worker once his/her permanent residency application is ultimately approved and the worker has the intention of returning to work for the sponsoring employer, the labor certification will still be valid and will be processed by the Department of Labor.  If this intention by the employer and employee does not exist, the employee will have to re-start the labor certification with a new employer.

Q.        What happens to an approved I-140 Immigrant Petition for Alien Worker after a layoff?

Assuming that a worker only has an approved I-140 and no pending I-485 Adjustment of Status application, the I-140 would become null and void after a lay off.  If the sponsoring employer has the intention of re-hiring the worker after the ultimate approval of the permanent residency application, the I-140 petition can continue to be processed.  If this intention does not exist and the worker has to re-start the process with a new employer, the good news is that the worker can retain the original priority date from the old case for the new permanent residency application.

 Q:        What happens if an H-1B worker has an approved I-140 and their I-485 adjustment of status has been pending for over 180 days?

In this case, the worker would be covered under the American Competitiveness and Workforce Act (AC21).  The worker could ‘port’ to another employer and continue with their residency application as long as the new position is the ‘same or similar to’ the original position listed in the labor certification.  Currently, there are no USCIS regulations that define the ‘same or similar’ standard.  If the job duties are basically close to what the worker was doing before, the worker should be covered under AC21.

Q:        What obligations does a company have when laying off a worker in H-1B status?

A company must pay for the H-1B worker’s reasonable transportation costs back to their home country.  This means paying for a plane ticket only.  This obligation does not extend to the H-1B worker’s family members.   A company should also withdraw the worker’s H-1B status by sending a letter requesting a withdrawal to the USCIS.   In DOL vs. Help Foundation of Omaha Inc. (ALJ Case No. 2005-LCA-037, the Administrative Review Board found that an employer’s obligation to pay the H-1B worker’s wages continues even after termination of the worker unless a withdrawal request has been filed with the USCIS.  

Q:        Can an H-1B worker get unemployment benefits after a layoff?

Unemployment benefits are determined by state law.  To get unemployment benefits, a worker must be able to return to work.  If an H-1B worker is laid off, they no longer have legal work status in the United States.  Therefore, a laid off worker in H-1B status may have a problem getting unemployment benefits.  To determine whether or not a person is eligible to receive unemployment benefits, we recommend that laid off workers contact the local branch of the Department of Labor.  Additional information can be found at http://workforcesecurity.doleta.gov/unemploy/uifactsheet.asp.

There is no question that these are stressful times.  If a worker is laid off, they may have options.  It is strongly recommended that non-immigrant workers contact an attorney to discuss their immigration status if a layoff is imminent. 

© Bashyam Spiro LLP 2009.

A bill (S.3414) that would recapture family-sponsored and employment-based immigrant visas lost to bureaucratic delays was introduced in the U.S. Senate.  Similar to the bill passed by the House Judiciary Subcommittee, this bill would also prevent loses of family and employment-based immigrant visas in the future.   To read the entire text of this bill, please go to THIS LINK.

There seems to be positive movement in Congress when it comes to helping out the immigrant visa backlog.  As more information becomes available, we will post it at www.bashyamspiro.com.

In what could be considered a positive step for at least some immigration reform this year, the House Judiciary Subcommittee held a mark-up session today and approved three pieces of immigration-related legislation.

H.R. 6020, sponsored by Representative Lofgren (D-CA), would amend the INA to allow soldiers who have served in support of contingency operations to be eligible for naturalization and for other purposes.

H.R. 5882, sponsored by Representative Lofgren (D-CA), would recapture employment-based and family-sponsored immigrant visas lost to bureaucratic delays and to prevent losses of these visas in the future.

H.R. 5924, sponsored by Representative Wexler (D-FL) would provide 20,000 employment-based visas per year for three years specifically for nurses.

All three bills will now go to the full House Judiciary Committee for review. A review date has not been set. We will watch these important bills closely and will provide an update as new information becomes available.

The United States Citizenship and Immigration Service (USCIS) posted an update on its web site about changes it is making to the biometrics requirement for reentry permit and refugee travel document applications (Form I-131).  The most important change is that applicants (between the ages of 14 and 79) must now provide biometics (finger prints) before departing the United States.  This is in addition to the requirement that the application be made while the applicant is physically present in the U.S. The immigration service filing fee for biometrics is $80.  

Although the USCIS advises applicants to apply for a reentry permit well in advance of travel,  one can request expedited processing.  To do so, an applicant must submit pre-paid express mailers with the Form I-131 for USCIS to send the applicant his or her receipt and ASC appointment notice, as well as the completed reentry permit or refugee travel document, if approved.  A request for expedited processing should contain the applicant’s reasons for such processing so that USCIS may determine whether the applicant qualifies for expedited processing.

A reentry permit is needed if a lawful permanent resident needs to travel outside the U.S. for more than one (1) year.

U.S. Citizenship and Immigration Services (USCIS) announced that beginning on June 30, 2008 it will issue Employment Authorization Documents (EAD) valid for two years.

The new two-year EAD is only available to individuals who have filed to become a lawful permanent resident (LPR) using a Form I-485, Application to Register Permanent Residence or Adjust Status, and filed for employment authorization under Section 274.a.12(c)(9) of Title 8, Code of Federal Regulations (8 C.F.R.) but are unable to become an LPR because an immigrant visa number is not currently available.

The USCIS issued the following questions and answers to further explain this new policy.

What is an EAD?

Certain aliens who are temporarily in the United States may file a Form I-765, Application for Employment Authorization, to request an Employment Authorization Document (EAD), which authorizes them to work legally in the U.S. during the time the EAD is valid.  

Who is eligible for an EAD that is valid for two years?

The two-year EAD is available to pending adjustment applicants (i.e., those who have filed a Form I-485, Application to Register Permanent Residence or Adjust Status) who have filed for an EAD under Section 274.a.12(c)(9) of Title 8, Code of Federal Regulations (8 C.F.R.) and who are currently unable to adjust status because an immigrant visa number is not currently available. USCIS will continue to grant EADs that are valid for one-year for adjustment applicants who have an available immigrant visa number and are filing for employment authorization under 8 C.F.R. Section 274a.12(c)(9).

When will applicants expect to receive the new two-year EAD?

USCIS expects to implement this initiative for cases pending on June 30, 2008.   Applicants filing Form I-765 under 8 C.F.R., Section 274.a.12(c)(9) should begin to receive their two-year EAD a couple of weeks after the anticipated June 30, 2008 implementation date.

Will applicants get a two-year EAD when they file an I-765 with their I-485 adjustment of status application?

Initial EAD filings will generally receive an EAD that is valid for one- year because they are usually submitted with the Form I-485 that can only be filed when there is an immigrant visa number immediately available to the individual.   Applicants are only eligible for a two-year EAD if their immigrant visa availability date retrogresses (i.e., when actual demand for visa numbers exceeds forecasted supply) after the Form I-485 is filed.  If an immigrant visa number is available, USCIS will grant the one-year EAD.

How will USCIS decide whether to issue an EAD valid for one or two years?

USCIS will decide whether to renew an EAD for either a one or two-year validity period based on the most recent Department of State Visa Bulletin available at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.   If an applicant’s visa number has retrogressed and is unavailable, USCIS may issue a renewal EAD valid for two years.  USCIS will continue to issue the EAD in one-year increments when the Department of State Visa Bulletin shows an employment-based preference category is current as a whole or the applicant’s priority date is current.

If I am filing for a replacement EAD under 8 C.F.R., Section 274.a.12(c)(9), how long is the EAD valid?

If an individual requests to replace an EAD that has not expired, USCIS will issue a replacement EAD that is valid through the same date as the previously issued EAD.   However, if the previous EAD has expired, USCIS will process the request for a renewal EAD and determine the appropriate validity period based on the Department of State Visa Bulletin and the applicant’s priority date.

If USCIS determines that an applicant has filed multiple Forms I-765, the agency may deny the applications for the replacement or renewal EAD.

I filed my Form I-765 more than 90 days ago and I have not received a decision, who should I contact?

If you have not received a decision within 90 days of the USCIS receipt date and you have properly filed your EAD application, you may apply to obtain an interim EAD by appearing in person at your local USCIS District Office. You must bring proof of identity and any notices that you have received from USCIS in connection with your application for employment authorization.

The United States Citizenship and Immigration Service issued a Frequently Asked Questions (FAQ) memo yesterday that addressed a number of questions people have regarding filing I-140 and I-485 applications pursuant to the July Visa Bulletin No. 107.  Since the FAQ is helpful and informative, we have listed each question and answer below.

Q1: Will USCIS reject a concurrently filed EB I-140/I-485 case if it is lacking a required Labor Certification? 

The Department of State has revised its July Visa Bulletin to reflect that all available employment-based immigrant visas have been allocated for Fiscal Year 2007.  As a result, USCIS has announced that it will reject any I-485 adjustment of status applications filed by aliens whose priority dates are not current under the revised July Visa Bulletin.  We will provide additional updates as we get them.