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Saturday, June 26, 2004

When an H-1B Worker is Terminated: What Happens?

When an H-1B Worker is Terminated: What Happens?

Jennifer Wipf: Everyone, Carl Shusterman is here now and we have tons of questions. Many of them are the same questions. A huge number of you are in the same position... so be patient and you will probably find that we do answer you here :) I'm turning moderation on now. It's probably best for you to hold your questions for a little while. Please remember that the answers here are of a general nature and cannot be construed as legal advice.

Carl Shusterman: Good evening everyone. I'm looking forward to tonight's chat. I've noticed that a huge number of new subscribers to "Shusterman's Immigration Update" are coming from companies that have announced lay offs over the past 2-3 months. I hope over the next hour that we will be able to help many people who have been laid off, terminated or are worried about a possible termination to develop strategies to stay in proper immigration status. So let's go to the questions.

Question #1: Hi. I have a question about H-1 validity. I came to the USA on a H-4 and then converted to H-1, but the company ran into losses and I could not join. My H-1 was approved on Dec 28, but since the company was laying off people, I could not even join the company. Is my H-1 valid, or should I have to explicitly apply for H-4 as my husband still holds a valid H-1? Please advise. Thank You.

Carl Shusterman: Since the company does not have a job for you to fill, you should request that your status be changed back to H-4.

Question # 2: What happens if you leave a company after 180 days and INS sends an RFE, asking for pay stubs or other information?

Carl Shusterman: So far, the INS has yet to publish regulations implementing the 180 day rule. However, the law itself makes it clear that you can only adjust status upon demonstrating that you worked for the petitioning company for at least 180 days after your application for adjustment of status was submitted. For immigration lawyers this requirement is inconsistent with the more general rule that you are not required to work for the petitioning company until after you have received lawful permanent residence. However, as an ex-INS Trial Attorney, I doubt that INS would grant permanent residence to a person with an EAD and a pending application for adjustment of status who never worked for the petitioning employer. So as a practical matter, you are going to have to show paystubs, letters of employment, or any other type of proof the INS requests in order to demonstrate that you have complied with the 180 day rule.

Question #3: Been laid off last June from H1B, can my dad file I-130 based on 245i, will it affect my present job (not authorized)?

Carl Shusterman: Yes, if your father files an I-130 on your behalf by April 30th, 2001, and you were present in the United States on December 21, 2000, you will be grandfathered into section 245(i). Section 245(i) does not provide the beneficiary of a petition with employment authorization. You'll only be able to apply for an EAD when your priority date is current and you submit an application for adjustment of status.

Question #4: I am currently working on a H1-B visa & will be laid-off soon. I have my EAD & it has been more than 180 days since my I-485 was filed. Can I work for a new employer by filing a H1-B transfer? (I don't want to use my EAD). Also what happens if I don't find a job for a month or two after lay-off? What would be my status? Can I file for an H1-B transfer after a month or two?? Please help. Thanks...

Carl Shusterman: The advantage of using your EAD to secure alternate employment is that you can start work immediately without having your new employer file an H-1B petition, and if you are unable to find new employment quickly, you will remain in legal status. However, as long as you remain in valid H-1B status, you can choose to have your new employer file an H-1B petition on your behalf. Under the H-1B cap law passed in October 2000, as soon as the new employer submits an H-1B petition on your behalf, you can being working with the new employer.

Question #5: I entered US 3 weeks ago on an H-1B from employer A. Employer A wants me to wait indefinitely before joining them due to current market conditions. I also have an other offer from employer B. Can I apply to transfer H1 from employer A to employer B even though I do not have any pay stubs from employer A? Or can I file for a new H-1B with employer B? If so do I need to go back to my home country to get the H-1B stamped for employer B?

Carl Shusterman: First, your initial employer has an obligation to pay you your full salary whether or not there is work available for you. You may wish to demand that the employer do so. When your new employer submits a petition requesting that you be allowed to change employers, I suggest that he include the letter that you wrote to your first employer demanding that you be paid the salary specified on the LCA. This way, you will be maximizing your chances that the INS will allow you to change employers without leaving the United States. Should INS deny this request and simply grant your new H-1B petition, you do not need to obtain a new visa. You can simply exit the United States and return with your valid H-1B visa and the original Notice of Action showing that INS has approved your new H-1B petition.

Question #6: If I am laid off, do I have any advantage if my I-140 is filed?

Carl Shusterman: Yes, because even if you have to have your new employer submit a new labor certification, an I-140 on your behalf, INS regulations allow you to retain your original priority date and you will also be entitled to benefits under 245(i), even though the EB2 categories for both India and China (and the rest of the world) will be current in May, and the EB3 category should also be current for all countries soon, this situation is not going to last forever. If you have not filed your application for adjustment of status until late 2002, or even 2003, your retention of the earlier priority dates will allow you to become a permanent resident much faster.

Question #7: I have not received payslips since Jan 2nd and my employer forced me to give a letter of leave of absence. I have been given a letter on March 16th stating that I am given a month's time to look for another job. When do I go out of status? When my H-1B gets cancelled or from today onwards?

Carl Shusterman: As an H-1B worker, you must be working for your petitioning employer in order to maintain status; in my opinion, you have been out of status since January.

Question #8: What exactly are the responsibilities of the old employer at termination ? - i.e. flights home, health coverage, etc. - and does any of this include my H4s?

Carl Shusterman: If you read the language on the labor condition application, clearly see: http://shusterman.com/dolforms and scroll down and click "Form ETA - 9035", you will see that in order to employ an H-1B worker, an employer must assure the Labor Department that the H-1B worker will get the same benefits as a US worker. This means that any benefits (e.g. severance package, etc.) must be identical for H-1B workers and US workers. Also, if the spouses and children of US workers who are terminated are entitled to benefits by the employer, these same benefits must be extended to spouses and children of H-4 workers. In addition, employers must promise to pay the flight expenses home to an H-1B worker who is terminated. However, in practice, this is rarely done, since most H-1B workers prefer to find a new employer in the United States rather than return home.

Question #9: My company has terminated me. My last working day is April 23rd. Till when will I stay in status? If another company is filing my H-1B, what will happen if they file it after April 23rd? From when can I start working for them? If I change myself to H-4 and then a company files H-1B, when can I start working for them? Should I have to wait till the full H-1B process is over? How can I apply for a H-4? Will I have to go out of the country?

Carl Shusterman: Neither the law nor the regulations provide a specific length of time that a laid off H-1B worker has to locate a new employer. The so-called "10 day rule" which is mentioned in 8 CFR Section 214.2 (h)(13)(I)(A) only applies to the validity of H-1B workers before and after the petition begins and ends. It has no bearing on how long an H-1B worker is allowed to stay in the United States searching for a new job. In general, INS applies a "rule of reason" which over the years INS spokesmen have defined as 30 days, 45 days, or 60 days. My advice is that if you are laid off and think that you may need several weeks to locate a new employer, that you change status to B-2 visitor and change your status back to H-1B when you find a new employer. Although there are no regulations yet implementing the H-1B portability provision, I believe that it applies not only to persons changing from one H-1B employer to another, but also to persons who are in H-1B status, changed to another status, and are now changing back to H-1B status. For a general explanation of what to do if you are in H-1B status and are laid off from your job, see: Topic 3 of the April 2001 issue of Shusterman's Immigration Update at: http://shusterman.com/apr01.html#3

Question #10: Hi. My labor certification went through and I applied for I-140 recently. What happens if I get laid off now? Can I transfer my labor certification and I-140 to the next company?

Carl Shusterman: You will not be able to transfer your labor certification and I-140 approval to a new employer under normal circumstances. What you can transfer is your priority date.

Question #11: Can you continue to process your Green Card with your previous employer even if you are not working for the same employer any more?

Carl Shusterman: Only if you have complied with the 180 day rule. That is, you worked for your employer for 180 days after your application for adjustment of status was submitted to the INS and you have obtained employment in the same or a similar occupation. We are waiting for INS regulations to clarify this matter further.

Question #12: When you are laid off by the employer (with H-1B Visa) and you have found another employer willing to send a petition to the INS (for changing employers) on your behalf, what exactly does the second employer have to send to INS beside I-129 petition and LCA? Do I have to reevaluate my diplomas or I can send a copy of the evaluations from the time the previous employer applied for my H1-B visa?

Carl Shusterman: The new employer must describe his company, the job being offered and your suitability for that job. However, the documents relating to you will be either the same or very similar to what was submitted to support your first petition. Your university diploma, or your credentials evaluation, will be exactly the same as in the first petition.

Question #13: In what situations can a complaint against a former employer be submitted and what has the employee to do afterwards? He/she has to stay in the US until the complaint is resolved or he can go home and leave this matter in the hands of the INS? Where to send the complaint?

Carl Shusterman: Complaints against employers who fail to comply with the terms and conditions of an LCA should be submitted to the Wage and Hour Division of the Department of Labor. There is no specific form to complete. In fact, the complaint can be submitted verbally by calling the local office of the Wage and Hour Division. If you wish, you can ask the Labor Department to keep your identity anonymous. Most complaints involve an employer's failure to pay the wage specified on the LCA, although some complaints also involve alleged violations of the benefits obligation, the posting requirement, the no strike/lock-out provision, etc. Upon receipt of your complaint, an investigator for the Wage and Hour Division will determine if there is a reasonable basis for your complaint and, if so, will investigate the matter and issue a determination. If either the employer or the employee is dissatisfied with this determination, they may ask for a hearing in front of an administrative law judge. I have been involved in several of these matters, usually representing the employer against what I considered to be either frivolous complaints or over broad interpretations by the Wage and Hour Division against the employer. However, if after carefully examining the LCA you feel that you have a valid complaint, you can, and should, file a complaint with the Labor Department.

Question #14: I am with a company that is about to lay off some H-1B workers. The company is interested in doing everything it can to protect the ability of the workers to stay here in status long enough to secure another H-1B sponsor. What are some things that we can do in this regard?

Carl Shusterman: Our law firm is finding that for every laid off H-1B worker, several job opportunities exist. If you are an employer and must terminate H-1B workers, it may be in your interest and certainly in the interest of your former employees to help them relocate to other employers who can sponsor them for H-1B status. In this way, you will be doing a service to these employees and, in addition, you will not have to be responsible for paying their travel expenses back home.

Jennifer Wipf: Everyone, we have now run 10 minutes over and it's time for Carl to leave. We had many, many duplicate questions here and we believe we answered all related questions. If you are still unclear, I will try to help you understand the answer after this chat, and a transcript will also be posted. After Carl gives his closing statement, I will turn moderation off so you can speak freely. Thank you Carl!

Carl Shusterman: I hope that our chat this evening was valuable to both employers and employees. Hopefully, the lay offs that are currently occurring in the IT and telecommunications industry will soon be over. And there will be plenty of jobs for H-1B workers and US workers alike. In the meantime, I will try to do everything I can to advise employers and employees so that neither runs afoul of immigration laws and regulations. Good night!

Jennifer Wipf: Thanks again Carl, and good night.

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