Pink slips make H-1B workers see red

Date: Thursday, April 24, 2003 10:38 AM

H-1B and JOB DESTRUCTION NEWSLETTER

www.ZaZona.com

H-1Bs that lose their jobs are considered "out of status" and therefore
subject to deportation. Fortunately for those jobless H-1Bs there are
articles like this to advise them how to exploit loopholes in the law
to avoid leaving.

This website has all sorts of good advice for nonimmigrant aliens. Go
to this page for a goldmine of information.
http://www.assureconsulting.com/faqs/index.shtml

http://www.assureconsulting.com/articles/laidoff.shtml

Pink slips make H-1B workers see red

he slowdown in the US economy and the turbulence in the tech sector has
caused widespread fear among the H-1B community, especially Indian
techies who constitute a sizeable portion (43 per cent) of the H-1B
work force. As companies bow to the pressure of slowdown and announce
layoffs or a freeze in hiring to remain lean and efficient in a tight
market, H-1B workers, who flocked to the US to fulfil dollar dreams,
await the fall of the company axe with trepidation. The uncertainty in
the job market is clearly reflected on H-1B discussion boards, on the
net. A question thats recurring far too frequently for comfort is:
What will happen to me if I am laid off? Thankfully, as of now, the
questions point to the future rather than the present but dismayed,
confused and frightened members of the H-1B community are struggling
for answers. Each respondent has a different explanation to offer,
based on hearsay, or a particular attorneys interpretation of the
law, obfuscating an already complex situation further.

The official US immigration body, the Immigration and Naturalisation
Services, unclear and ambiguous policies on application of law visa-vi
H-1B workers who have become unwitting victims of a declining economy
has not helped either. In fact, certain officers of the Immigration and
Naturalization Services (primarily Evelyn Schmidt, a spokesperson for
the Immigration and Naturalisation Services in Washington DC) have been
afflicted by a foot-in-the-mouth disease, issuing contradictory
statements on application of law visa-vis laid-off H-1B workers. Last
week, Wired magazine, on the basis of certain statements made by this
particular INS official, stated that considering the strange and
unexpected circumstances, the INS is bound to take a lenient view of
H-1B workers rendered out of status. The relief was rather short-lived.
Less than a week later, the same official stated that she had been
misquoted. The consequent clarifications were hardly edifying for the
H-1B community desperate for concrete information on whether they wold
be chucked out of the country if their respective employers showed them
the door. Assureconsulting.com attempts to clear the air.

Its bad news but true. If the employer decides to terminate services
of techies on H-1B visas, they have few options, Since the H-1B visa is
a work-related visa, it means that technically the visa-holder is out
of status as soon as the he or she loses his job. The desperate H-1B
community is holding on to the slender hope that the INS grants them a
10-day period to find a new job or leave the country if their services
are terminated. This was based on the: 8 C.F.R. 214.2(h)(13)(I)(13)
Admission (I) General (A) regulations, which stated: A beneficiary
shall be admitted to the United States for the validity period of the
petition, plus a period of 10 days before the validity period begins
and 10 days after the validity period ends. The hope was reduced to
smithereens, when Evelyn Schmidt, the INS spokesperson from Washington,
in an interview with rediff.com, clarified: Though the ten-day rule
does exist in immigration law what it means is that at the end of the
period of their (H-1B workers) admission -- the end of their whole six
years or three years, if they decide that they don't want to stay any
longer in the United States, that they don't want an extension, maybe
because there are better opportunities in India, or whatever, then they
have 10 additional days, after the last day of their work, before they
leave for their home country. Although in most cases: if a laid-off
worker finds a new employer to file a new H-1B petition within ten days
of termination, the INS will generally consider such filing to be in
status; a strict reading of the law reveals that that technically H-1B
workers do not even have a one-day grace period.

Although alarming, not many H-1B workers have begun a reverse exodus to
India. Many are taking advantage of certain loopholes in the law and
hoping that a skilled immigration lawyer will be able to argue the case
in their favour once they find another job. While Assureconsulting.com
brings broad indicators about these loopholes with an intention to
inform, we do not deny that techies who decide to stay on, despite
being out of status, are taking a calculated risk.

Laid-off H-1B workers can probably evade the INS iron fist with the
help of their respective employers. H-1B employment is guaranteed and
not at will or speculative employment. Guaranteed employment signifies
that the employer shifts the employee to the US on the grounds that
there is work available for three years. This is clearly stated in the
H-1B petition. Employers, therefore, are liable to be sued by employees
if they squeal to the INS that they have sacked workers. To prevent
being sued for reneging on the terms of the employment contract, H-1B
employers do not inform the INS that they have sacked workers. Instead
many employers ask workers to hand a voluntary resignation letter. The
INS can oust H-1B workers only on the possession of knowledge that they
have been sacked. Hence, as long as employers sacks H-1B workers, but
does not inform the INS, it will not revoke the visa. Therefore, if you
are on H-1B, and your employer has asked for a voluntary resignation
letter, strike a deal with the employer and sign a post-dated voluntary
letter. This will give you breathing space to look for a job and remain
in status while doing so. Remember it is in the employers favour to
not inform the INS. This is a tacit conspiracy that works most of the
time in everyones favour.

The employers refusal to collude on this can create difficulties. In
this scenario, request the employer to keep the INS in the dark till
you land another job and apply for visa transfer after you land the new
job. Now this could result in certain other problems such as
non-possession of pay-stubs for the last few months to apply for
transfer. In all likelihood, however, an immigration lawyer will be
able to bail you out. However, if your skills are readily available in
the job market and you have a gut instinct that it would take you two
to three months to get a new job, in the interim apply for change of
status to B-1. If you are on an H-1B and your spouse is working, you
could alternately apply for an H-4 visa and hunt for a job. Once you
find a new sponsor, you can revert to H-1B status.

As stated earlier, in all likelihood the employer will not report to
the INS that you have been sacked as he or she is liable to be sued, If
the employer, however, reports immediately to the INS that the worker
has been fired, you can take advantage of the ten-day myth and scramble
for a job. Beyond this period, the INS will begin proceedings to revoke
the visa. Usually, the revocation process takes several months, and the
visa holder would get multiple warnings and the chance to appeal before
this actually happens. If the out of status individual, with the help
of an immigrant lawyer, is able to convince INS adjudicators that
extraordinary circumstances were responsible for loss of status and he
or she was not to blame, probably he or she would escape deportation
and the concomitant ten-year bar from entering the US. Herein, lies the
catch. Although the INS is known to be lenient in case a worker loses
status due to cutback in jobs by the employer, the interpretation of
extraordinary circumstances varies from case to case and there is no
blanket or universal interpretation of the term.

How INS adjudicators interpret extraordinary circumstances, will
largely depend on the evidence the out of status worker can provide. It
could mean that you walked into the office and found pink slip on your
desk. There was no prior warning about impending lay-offs. It could
also mean that despite rumours of lay-offs were floating around, nobody
knew whose services would be terminated. The more evidence the laid-off
worker can provide to irrevocably prove unusual circumstances
surrounding his firing, the higher the chances of staying on for H-1B
workers However, Assureconsulting.com agrees with Immigration attorney
Greg Siskind advise cautioning H-1B workers not pin their hopes on the
"extraordinary circumstances" loophole. "That's the last thing I would
tell clients to do".

Any course of action is therefore not free of risks. But the situation
does not demand that one pressed the panic buttons either. Keep your
ears and eyes open, and do not dismiss office gossip of lay-offs. In
ninety per cent of the cases it is true. Try to maintain your status
and keep a lookout for jobs on sites like Assureconsulting.com, which
can arrange for interviews and work for laid-off H-1B workers
immediately and help them maintain status.

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