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The H-1B Visa Blog by Siliato and Malyk

A Partial Solution To The Plight Of H-1B Workers In A Struggling Economy - A Grace Period?

Rating: 2 votes, 5.00 average.

While some may find it a slight to the "big picture" to discuss the plight of a laid-off H-1B worker (given the relatively small percentage of such workers when compared with the unemployment rate of all U.S. workers), it's worth taking a glimpse at the unique circumstances confronting such an H-1B worker and his/her family upon receiving notice of termination from employment.  Especially since this dilemma, unlike most others, has a simple fix--a regulatory grace period.

The underlying problem is that employers rarely give ample notice in circumstances involving a reduction in force.  Instead, a two week "severance" is commonly offered to the worker, with the actual termination effective immediately.  This presents problems to H-1B workers which are far greater than the typical issues we all face from a loss of employment.  Indeed, since the H-B visa classification is "employer specific," an H-1B worker is entirely dependent on his employer not only for livelihood, but for the ability to remain in legal status in the United States.  The H-1B regulations are rigid and antiquated.  DHS considers an H-1B worker to be "out of status" as of the date of termination--regardless of the duration or amount of severance. In other words, in addition to the initial shock of losing one's employ, the H-1B worker and his/her entire family are immediately considered "out of status" and subject to removal from the United States. 

Under current law, DHS does not provide a grace period once a foreign national who is employed pursuant to an H-1B is terminated. Under a strict interpretation of the law, for such a foreign national to remain in an authorized period of stay, an application for an extension of stay in H-1B status (assuming new employment is found) or a change of status to another non-immigrant classification (e.g., B-2 visitor for pleasure) must have been filed prior to or contemporaneous with the termination of employment.  This is true for not only the worker, but also for his/her family. A failure to do so will likely render the entire family "out of status" - making a distressing situation exponentially more stressful for the terminated H-1B worker and his/her family.  Moreover, a late filing for a change of status or for an extension of stay in H-1B status could result in a denial of such application.  A denial, in turn, would require a trip back to the family's country of last residence to obtain visas and re-legalize their status.  Needless to say, such personal disruption and expense is no small matter.

Of course, lay-offs are a fact of life, especially so in today's economic environment.  What's more, an H-1B worker will never be immune from the "at-will" aspect of an employment-based category.  So, what's the solution?  To ameliorate the harsh effects of a lay-off, DHS could provide a reasonable grace period under the law (45 days) before the foreign national and his/her family would be deemed "out of status."  Such a simple solution would at least provide the "disenfranchised" family an opportunity to seek proper counsel to remain in the United States in legal status while considering its options--whether filing a change of status application, filing a new H-1B petition or returning to their last country of residence.

Perhaps comprehensive immigration reform, if and when it is enacted, will provide for such a grace period and make other legislative adjustments in recognition of the contributions made by foreign national workers who are filling specialty occupations--rather than applying an archaic zero tolerance policy that does little to serve anyone's interests.

For additional information and frequent updates on a variety of employment-based immigration law issues, please click here to navigate to Meyner and Landis LLP's Corporate Immigration Law News Blog.

Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP

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  1. seeker's Avatar
    It does not take 45 days to book a flight and pack one's belongings.
  2. Brittancus's Avatar
    Instead of pandering to the business community, our elected politicians must execute E-Verify as permanent tool to draw illegal workers away from the workplace? It must not be voluntary to be enforced, with serious penalties for employers who disregard the law. Heavy fines should be imposed, along with asset confiscation and for hiring a large force of illegal foreign workers a lengthy prison sentence. Nobody in the workplace should be exempt from being positively identified as a Citizen or a US permanent resident. Even the longest employed worker should be checked through the system. E-Verification should be built upon, with any new innovations desired to stop jobs being stolen from those legally allowed to work.

    Many ICE raids across the nation have proved beyond doubt the extent of illegal nationals taking jobs of citizens and how expeditiously these unfilled jobs were taken back by bona-fide workers in the poultry industry. Americans in the working environment should report any illegal activity to ICE, so they can investigate. E-Verify is the only substantial program in immigration armory that must not be weakened. It is evident that it's operational owing to the tireless assault of the ACLU, US Chamber of Commerce to silence its function in the courts. Now is the time to pressure your reluctant elected official, specifically in California. This Sanctuary Refuge for illegal aliens and their families have been overloading schools, hospitals and government welfare benefits to pacify special interest lobbyists.

    Voters should also immediately mandate installation of E-Verify nationwide in vetting the janitor to an engineer, from a sheet metal worker to an advertising executive. When the welfare state of California nearly financially collapsed, it can be partially attributed to the massive population of illegal immigrants. The time is ripe to shout aloud of the decades of inflated taxes supporting education to K-12, free medical care and considerably more which stays intentionally undisclosed to the public. MAKE A NOTE OF THIS WASHINGTON SWITCHBOARD NUMBER 202-224-3121. Like never before we need the Nation Guard to patrol the border on a permanent basis, to support the undermanned region.

    Democrats declare in the town hall meetings, that foreign nationals have--NO--access to benefits in Obama's health care reform.
    But if a path to citizenship or AMNESTY is not--TABLED--in the coming Immigration Reform session, then one-and-all, will automatically be provided for as new citizens into the health care program. In addition we must consider the gigantic onslaught of millions more who will try to join those already here? WE CANNOT EVEN PROVIDE MEDICAL FOR OUR OWN POPULATION? I CONCUR WITH A PUBLIC OPTION-BUT NOT FOR FOREIGN NATIONALS.

  3. CodeCorrector's Avatar
    Equally disturbing is the unwillingness of Indian IT outsourcing companies to give U.S. citizens a chance to compete for jobs on U.S. soil. This massive open discrimination, practiced by WIPRO, TATA, and Satyam where fully 90% of their U.S. based workforce are Indian citizens.
  4. odd1's Avatar
    Employers, being aware of holding all the cards when it comes to sponsoring H1B visa holders could provide 'notice' to the H1B holder. Allowing the H1B worker a time period of 14 - 30 days should be adequate time to make arrangements for their immediate future. With the present economy, it would be wise for the H1B employee to be prepared for the floor to drop. Native employees have to, why should it be any different for foreign nationals working in the USA?
  5. Bill's Avatar
    Sorry, I save my sympathy for the American worker the H-1b replaced
  6. Harry's Avatar
    I hope people realize that these H1B workers have families with them - children who go to school, maybe some of them bought homes - do you realistically think even 45 days is enough to wind up affairs built up over years of working and living in the country? I understand the hostility towards the H1B workers in today's economy, a lot of it due to a lack of information about these people no doubt, but these people have already been in the country for years (mostly with green card applications pending) and they have been trying to make the US their home. Whatever jobs they "stole", they did that a long time back when the economy was good - if you see today, new H1B applications have plummeted. They have been paying their taxes (as they should be), and following the immigration laws however antiquated they may be, and generally have kept their lives on hold till they are granted the privilege of "lawful permanent residents". I would hope people gave them the basic respect and decency that should be afforded to any human being. I would gladly advocate halting any NEW people coming over, but it seems very cruel to me that one would advocate sending people who have been here for maybe 5, 7 years back to their home countries.
  7. seeker's Avatar
    I agree that all simpathy should be for the U.S. citizens who lost their homes when were replaced by the temporary H-1Bs.
  8. Carmine's Avatar
    This is totally unnecessary. The H-1B knows before he/she comes here how long they will be needed temporarilly. If the H-1B knows when they must leave, why would they wait until after that to start packing?

    What may be needed is better time management skills, which the U.S. is not responsible to regulate.
  9. American's Avatar
    One sensible post after long time. H1B job may be temporary. But people are promised permanent job and GC process started. But unfortunately people are struck for 5 years due to incompetent USCIS and DOS. Once the job is lost everything is lost. I do understand about the problems of native Americans. But you got to understand the H1B community is very small and they want to make this country their home. But the worst is L1B visa. There is no annual cap for that. There is no prevailing wage restriction like H1. So really L1Bs are replacing American workers and not the H1B. So go after the L1B guys and companies...spare H1B

  10. IT guy's Avatar
    For the H1b IT guy who works in US spends 80% - 90% here and sends just 10 - 15% to home country, if he buys a house in US then he sends 0%

    But did you realise when products are manufactured in china, 100% is spent in china (or other export countries).

    Its an irony that people complain against H1b, but go buy in walmart whoz products are from china (which have resulted in manufacturing industry being closed in US).

    People who complain against H1b (with good reason) should also with the same reason stop purchasing goods manufactured in other countries.

    One can u/stand the natives donot have total control over H1B comming here, but they do have TOTAL control over what they can buy.
  11. Green Card Visa's Avatar
    The lack of a grace period is actually quite brutal. Imagine the way an immigrant's life can be absolutely turned upside down through no fault of their own. I think a grace period like this should have been built into the initial process, to be honest.
  12. Jun's Avatar
    I think they are all males.Edit: Okay I stand corrected. They are uleevdnoped females indeed.John Doe's book of humor and little known facts. Made up stories to amuse and entertain young people by Joe Chiliwilly IV
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