New Immigration Rule:
Starting January 17, 2017 a 60 day grace period given to H-1B workers following a layoff becomes an official law.
Click Here for USCIS website announceament.
Meanwhile, our article below is applicable:
Unfortunately, many employees are fired with little or no notice. It is common practice in the USA to fire employees on a Friday. This means on a Saturday or Monday H1B employee loses his or her legal status in the USA. With layoffs the employee sometimes receives several days of notice; sometimes he or she does not get any notice.
Many clients come to our office asking what to do in this situation.
If the employee has a new employer who extended an offer of employment, we can do an H1B visa transfer. However, to request a transfer to a new employer, we should show to USCIS that the employee was never out of status. To prepare a new H1B petition the attorney will need a minimum of 7 days. This is because it takes a minimum of 7 days to get a Labor Condition Application (LCA) approved. Only after an LCA is approved we can file an H1B transfer petition.
This 7 days window between the layoff and filing a new H1B petition may be critical because technically the employee is out of status those 7 days (a minimum). We will have to rely on USCIS discretion to allow H1B employer transfer. At The Law Office of Natalia Malyshkina we strongly discourage employees to attempt hiding the fact that there was a window where the H1B employee did not have status. H1B petitions are submitted under penalty of perjury, and not disclosing this critical information may cause significant consequences for employer and employee.
It is best to disclose the information and rely on USCIS discretion, while showing good will and honest effort on our part.
But very often immediate H1B transfer is not an option. Very often the employee needs time to find a new employer or transfer into H4 or other status available to him or her.
In those situations our advice is as follows. If you know that there are layoffs in the company or the company may not be doing very well financially, have an immigration attorney on a “stand by” to transfer you into a new status as soon as it is necessary.
Often the employee will want to switch to a tourist status to either gather belongings and prepare for departure from the USA, or travel, or to wind up various activities. B1/B2 status allows up to 6 months of legal stay in the USA and it can be extended. This is a much better option than simply staying illegally.
Additionally, sometimes we can negotiate with the employer. We can ask the employer to give employee curtesy of a couple of weeks layoff notice to allow the employee time to switch to a new visa/status. At The Law Office of Natalia Malyshkina we have noticed that this approach worked in a number of our cases and employers were willing to cooperate.
As always, do talk to your lawyer to know what your strategy should be. We are happy to help. You can call The Law Office of Natalia Malyshkina at 415-240-0083.