Q/A from Webinar on Immigration and Layoffs

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 1st) which means, I have to find someone who will file on April 1st 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 5th? My I-94 expires in 2010 but my layoff termination date is April 5th. 

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 2nd 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.