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New Life for Fired H-1B Workers
by Swaroopa Iyengar
2:00 a.m. Mar. 16, 2001 PST **
The Immigration and Naturalization Service appears to be giving a break
to foreign tech employees with H-1B visas who have been laid off.
This is coming as a pleasant surprise to just about everybody it
affects.
Acknowledging the "turbulent time in the tech industry," an INS official
said her agency will not force H-1B visa holders to leave the country if
they haven't found new employment within 10 days of being terminated.
"We are going to let things slide," agency spokeswoman Eyleen Schmidt
said.
In fact, that 10-day deadline may not even exist at all. Nowhere in the
Immigration and Nationality Act of 1952 -- and its amendments, which
contain H-1B provisions -- is there any language that stipulates a
timeframe in which a terminated employee must leave the country before
the visa expires.
Yet it has always been a common assumption among foreign tech workers
that their stay in the United States would quickly end if they lost
their jobs before their visa expired.
Silently but suddenly, that has changed.
"The visa holder can stay in the country until the date on the entry
ticket in the passport," said Schmidt.
An H-1B visa, which a foreign employee must acquire after accepting a
job in the United States, is valid for three years. If a visa holder
loses his or her job before that time, the visa remains valid, but the
holder is considered to be "out of status."
Being out of status technically means the employee is remaining in the
country despite no longer fulfilling the obligations for being granted
the visa. But that still doesn't mean they would be in the United States
illegally.
In other words, any recently terminated visa holder may have returned to
their homeland without really needing to.
"Some people will get on a plane and leave the country to comply with a
non-existent law -- when they actually have some wiggle room to find a
new job and stay on in the country," said Dyann DelVecchio, an
immigration attorney with Boston law firm Palmer and Dodge.
Although no statistics are available regarding how many visa holders
have been among the thousands of technology employees to lose their jobs
during the economic downturn of the past few months, this information
should be welcome -- if not perplexing -- relief to hundreds of recently
laid-off foreign workers.
1 of 2 *
"What is my current status here?" asked a newly unemployed H-1B visa
holder when informed of the INS' apparent turnaround.
He requested anonymity because "there are enough legal issues to deal
with already and one never knows when luck will run out and the INS will
come upon me."
"I spoke to 10 attorneys who told me 10 different things. I went on the
INS website and they did not have any information that even indicated a
timeframe to me," he added.
The man had believed there was an INS law that H-1B visa workers were
allowed to remain in the United States after termination only if they
could find a new job and then get the new employer to apply to the INS
for a transfer of the visa within a 10-day period.
But according to Crystal Williams, director of liaison and information
at the American Immigration Lawyers Association, "The 10-day thing is
such a popular myth that even the INS believes it."
"It is a very weird situation to be in," DelVecchio said. "There is no
regulatory period that protects these people.
"They have families and financial investments in this country,"
DelVecchio added. "They feel complete panic when they find their
residency is in question."
There certainly seems to be some confusion at the INS. Last week, the
INS' Schmidt said that as soon as a visa-holding employee lost his or
her job, "their visa is technically not valid." They would then have 10
days to get a new job or leave the country, then go through the visa
process all over again in order to return to the United States.
But there was an abrupt change Wednesday afternoon. "We had a meeting
... to clarify some of these issues," Schmidt said.
"These are extraordinary circumstances under which we are going to let
things slide and we would allow them to switch jobs without leaving the
country, even if they have been unemployed for a while," she added.
Asked how long terminated visa-holders would be allowed to remain in the
United States, Schmidt said the INS would review "on a case-by-case
basis."
"The INS does seem to be exercising discretion in dealing with H-1B visa
transfer requests," AILA's Williams said.
Still, some foreign workers are proceeding with caution, largely because
some of them want to apply for permanent residency. That procedure takes
several years, and being "out of status" for even a short period of time
could be held against them by INS officials.
"My attorney tells me I legally have 10 days, but he also says that I
can extend this for a month and not have to face any consequences," said
a Silicon Valley employee, requesting anonymity. "I just don't want to
jeopardize my position.
"No one really knows what we are supposed to do, but since they are
accepting late applications and not saying anything, I guess I will send
mine in and see what happens," he added. "But I really think they should
clarify issues, as this is a lot of stress."
Not knowing what to do has sent a few people back to their homes.
"My colleague ... who got laid off with me went back to Japan because
she thought she lapsed out of status," said Sashank Narasimhadevara, a
software programmer with Cambridge Technology Partners. "She got another
job here afterward, and her new company says they will file for her
H-1B. But she still has to wait in Japan for three months before she can
return and start working."
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"jo kHat main kahte they apni jaan mujhko
aaj kHat likhne main unki jaan jaati hai .....
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