H-1B or L-1 and unemployed ?

A temporary nonimmigrant US work visa such as H-1B or L-1 in times of high unemployment could mean racking up illegal presence.

If you hold a US temporary work visa, such as an H-1B or L-1 and you have lost your job you should consult an immigration attorney in order to avoid an overstay and illegal presence.

With increasing unemployment in the USA many foreign employees of US companies who hold temporary US nonimmigrant work visas, such as the H-1B visa and the L-1 visa have been receiving pink slips. United States immigration law is strict and regulatory. If you have been laid off or feel that this may be imminent it is important that you know your rights, strategize and be proactive in job hunting.

On Friday the 9th January the national unemployment rate climbed to 7.2% and with 1.9 million jobs vanishing in the final four months of the year. Employers have put employees on notice with forthcoming layoffs, furloughs, redundancies , and reductions in work force. Airline industries, high-tech companies and manufacturers are expected to be among the hardest hit. We have seen growth however in the entertainment, motion picture and sound recording industries in Southern California , with a reported 3,900 gain in jobs in November. Also nationally there have been small increases in education and health-care services and government employment. As a partner of Fong & Aquino, an immigration law firm, located in the heart of Hollywood where many production and post-production companies seek our counsel, I am often asked whether those workers on H-1B or L-1 status can be terminated even if their visas have not expired.

Others have asked me questions such as how long can an H-1B employee stay in the US after being terminated, and whether there is a grace period like 30 or 90 days. The answer is simple and draconian: once the employer-employee relationship ends, so does the employee's immigration status . In other words, when a worker no longer provides services as per the terms of their work petition , they are no longer allowed by the USCIS to remain in the US.

In practical terms, this does not mean that a worker who is laid-off or terminated packs their belongings, uproots their families and heads straight to the airport after they receive notice of their termination to return to their homelands. However, each day that they stay beyond their last day of work authorization is a day that would be considered unauthorized by the USCIS . An unauthorized stay however, is different than time spent in unlawful presence , which is a legal term of art. Obviously, neither unauthorized stay nor time spent in unlawful presence is something any worker wants to face, especially if one hopes to return to the US in the future to provide services to a new or the same employer. The consequences of any overstay can ruin your chances of obtaining another type of visa or indeed ultimately immigrating to the U.S. in the future. It can also affect your ability to visit or even work again on an H-1B or L-1 or even just to visit on an B-1 or B-2 visa.

If you have been laid off or fired from your job, or if your company has announced imminent layoffs, you need the counsel and advice of an attorney who can help you understand your rights and also the obligations you face as a temporary foreign worker in the U.S. If you have the luxury of time, to look for another job before you are laid off, you also need to talk to an attorney who can give you the facts about how to change employers or " transfer " your H-1B to a new employer so that you do not risk even a day of being out of status. Alternatively an immigration lawyer will be able to advise you on a change of status to another employer or visa status and how to preserve your lawful presence.

In order to avoid a conflict of interests it's always important to consult with a lawyer who does not represent the interests of your current or future employer. Although an attorney or law firm that represents both sponsor and employee is supposed to represent the interests of both parties, that duty ends when an employer decides to terminate a foreign worker. At that point, the attorney who represents a company need not and cannot act in the worker's best interest. If you fear that you will lose your job or you are already terminated from your job, you are strongly advised to consult an immigration attorney who has experience in working with individuals, consular processing and temporary work visas.

If you need to talk to counsel about your immigration status, if you have lost your job, or if you want to talk about changing jobs, call Fong & Aquino.