During the past few months, I have heard from many friends and clients who lost their jobs or otherwise faced with employment issues. The financial tsunami has wiped out millions of jobs, stalled many companies’ expansion plans and projects, and caused enormous anxiety on the minds of workers in the U.S. and other countries. The financial crises started in the U.S. and the impact has also been the greatest here. Headlines of job cuts and bankruptcies are common place in major newspapers and network channels. One of the side effects of this economic downturn is that many foreigners’ immigration status is being affected as well. This article discusses these issues and the defensive steps one should take to protect his immigration status in the U.S.
Understanding Your Situation
First and foremost, one must fully understand her immigration status in the U.S., including the visa category, as well as its restrictions and duration, etc. If a foreign national has not spoken to an immigration attorney yet, this is a good time to make an appointment to have an initial consultation. For instance, if a person is an H-1B worker, she may normally stay in the U.S. for a maximum of six years. This is assuming a petitioner has agreed to sponsor her for H-1B employment and she has properly maintained her status. A student, on the other hand, usually does not have an end date in her status. Instead, she is allowed to stay for the “duration of status”, for as long as she maintains her full-time course load of studies and pays her tuition. For her status to terminate, it normally should require an affirmative finding by the immigration officials that she has violated her status. Other visa categories such as L-1 status and B-1 status have their own restrictions.
H-1B and other Laid-Off Professionals
Perhaps, the most common non-immigrant status in the U.S. for the working professionals is the H-1B. An H-1B worker should normally only work for the sponsoring employer but not other employer. The employer must pay him the market wage as agreed upon in the Labor Condition Application. Maintaining a good performance record and always exceeding the employer’s expectations are good ways to secure one’s employment. However, no matter how hard a person tries, there is no way to stop him from being the victim of a massive layoffs or an elimination of a department. In those situations, one must think proactively to protect his status. The best solution is to look for work before one officially loses his job. Contrary to the some individuals’ belief, the USCIS does not grant any grace period for a laid-off H-1B worker to look for new employment. The best time to look for a new job is when you still have one. Always keep an eye for other opportunities.
If new employment is not on the horizon, then try to rely on a spouse’s status. For instance, one may change to H-4 status or F-2 status based on a spouse’s H-1B and F-1 status respectively. If a person has already started the green card application process, he may also be qualified for employment authorization document (EAD) issued by the USCIS. Usually, one must have filed the I-485 adjustment of status application before an EAD can be applied. Unlike H-1B employment status, an EAD issued based on a pending green card application allows the holder to work for any employer.
A laid-off worker may also attempt to change status to another visa category. For example, the F-1 student status would allow a person to stay in the U.S. for as long as he or she is studying according to the terms of the F-1 visa category. There are institutions which are able to issue the Form I-20 (Certificate of Eligibility) quickly enough to facilitate the application for change of status. Sometimes, changing to the B-2 tourist status may also be a temporary solution. It is important to note that the B-2 visa does not allow a person to engage in gainful employment in the U.S. If everything else fails, the foreigner who has lost legal status should depart the U.S. as soon as practicable to avoid negative ramifications. Normally, an out-of-status foreign would not be allowed to change or adjust immigration status. And when the person does leave the U.S. he or she would not be able to return to the U.S. for many years without a waiver.
Conclusion
The recent economic recession has caused many foreigners to lose their jobs and legal immigration status. It is very important that they understand their legal rights and restrictions and make the appropriate decisions. Usually the earlier one takes precautionary steps, the better the chance the person will have to maintain lawful status in the U.S.
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