Leading
immigration attorney Carl Shusterman recently hosted a chat on our site on:
What to Do if You are an H-1B and
the Boss Gives You a Pink Slip?
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!
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