| Q. I've just been laid off. Must
I leave the United States?
A. Not necessarily. You may wish to consider looking
for new H-1B employment, if that can be accomplished within
a reasonable period of time. As a matter of practice, INS
frequently overlooks gaps in employment lasting 30 days or
less, when reviewing applications for change or extension
of nonimmigrant status. For gaps of longer duration, there
may still be a chance to successfully extend or change nonimmigrant
status. An INS spokesperson has publicly commented that, regardless
of gaps in employment, nonimmigrant workers may be able to
file for an extension or change of nonimmigrant visa status
upon demonstrating extraordinary circumstances.
Regrettably, the absence of INS regulations leaves no clear
or easy answer to such situations. Therefore, there is always
some risk that an application filed with the INS after an
employee is terminated is at risk of denial, even though many
such applications are approved.
Q. Exactly what happens to my H-1B status if I'm laid
off?
A. INS regulations provide no guidance as to the effect
of layoffs upon nonimmigrant visa status (such as H-1B status).
INS regulations require all nonimmigrant workers to maintain
their nonimmigrant status if they are to remain eligible for
extension or change of nonimmigrant status. The INS has commented
publicly that they construe the word "maintain" to include
ongoing employment as a condition of maintaining H-1B nonimmigrant
status. Therefore, if an H-1B nonimmigrant worker is laid
off, there may be some risk of complications when applying
for further INS benefits, such as extending H-1B status with
another employer, or changing to another nonimmigrant status.
Q. I heard that an H-1B employee has 10 days to leave
the United States or file a new application with the INS after
being laid off? Is that true?
A. The so-called "10 day" regulation allows H-1B petition
beneficiaries admission to the United States for 10 days beyond
the validity period listed on the H-1B petition. This regulation
does not purport to explain how long, or whether, an H-1B
employee may remain in the United States after employment
is terminated.
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