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