The Non Immigrant in this Economic Downturn

Loosing a job is never easy.  Each and every one of the 14.7 million people who lost their jobs in this economic downturn has felt the sinking feeling in their stomach, the worry of uncertainty, and the stigma of failure.  But United States citizens can survive.  Yes, its hard for an accountant to deliver pizza, but its some money as opposed to nothing.  It’s an entirely different story with the non immigrants.

Employees in non immigrant visas like H-1b and L-1 are the first to let go off by companies.  Since their visas depend on one particular employer, they cannot get any job any where.  If they are not lucky in getting another Employer sponsor within a month, they have to convert to either student status, visitor status or go back.  The Citizenship and Immigration Service is denying significant amount of visitor’s visa for laid off employees.  And the cost can be far reaching

I had a client who worked for 25 years for an oil company in Saudi Arabia and 1 year in the United States.  And then he got laid off.  He is an Indian national, and his only option is to go back to India. He has a house in the US, which he will loose money on selling.  But the real cost is that his teen age children had never studies in India and will be hopelessly lost in the Indian education system.  He will not have money to provide for private schools.

Another client was coming back to work after visiting India for his father’s death and was informed by the Customs and Border Patrol in the airport that his employer fired him and revoked his H-1B visa.  In many cases non immigrants have postponed scheduled visits to their home country for fear of being laid off.  Some women are not taking maternity leaves after their babies are born for the same reason.  Thus the human cost for a non immigrant who is laid off goes far beyond finances.

By law a non immigrant looses their status when they loose their jobs.  However, the CIS has usually given a one month grace period. That means that if you can find another job sponsor and file the H-1B within one month, the CIS seems fine with that. They of course have to submit copies of their last pay stub with this new transfer.

If not, one should consider either filing for a visitor’s visa, student’s visa or go back to their home country. A Visitor’s visa may be necessary to extend their stay to be able to settle their financial affairs here. One should file the Form I-539 and explain the situation.  They should also show sufficient resources in the United States to stay here.  Very often the Citizenship and Immigration Service is asking for proof of ticket purchase to return.  Also the reason to stay here has to be compelling.  Citizenship and Immigration Service is afraid of people staying here illegally, and thus there is a high rate of denial of these change of status applications to a visitor’s visa.

The employee can also seek admission to a school and convert to a F student status.  School benefit from foreign students and foreign students benefit from the education.  However one has to actually study.  Just registering is not sufficient.

After converting status, if one has time remaining in their H-1B status (ie, they have not used up the six years), they can go back to the H-1B status any time they find another H-1B sponsor.  They do not have to enter the crazy H-1B lottery again.  Even if they are back in their home country, they can file for the remaining period on their H-1B.  Please see December 05, 2006 memo by Michael Aytes, Acting Director of USCIS.

By filing for a conversion to the B or F visa, or by leaving the US, they actually stop the running of the 6 year H-1B clock and preserve the remaining time. So when the economy picks up again, and trust me, it will; they do not have to enter the H-1B lottery again, and simply convert or come over on the H-1B visa.

Whatever one does though, they have to be careful not to accrue illegal presence.  According to that infamous law acronymed IRAIRA, if one has a 6 month illegal presence they are barred for 3 years, and if the illegal presence is 1 year or more there is a 10 year bar.

On the plus side, there is still H-1B numbers available.  As of July 03, the Citizenship and Immigration Service received 45,000 of the 65,000 per year quota for H-1B visas.  Businesses are slow in hiring, and that is true especially of non immigrants.  So for those lucky enough to find an employer sponsor, there is no lottery unlike previous years.

Hopefully we will all emerge from this economic downturn without too much scarring.  Hopefully the US will still be looked upon as a kinder gentler nation, and will continue to draw the brightest and the best to maintain our top position in the world marketplace.

Contact Houston Immigration Lawyer, Annie Banerjee, for more information

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