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 that’s 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 attorney’s 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.

It’s 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 employer’s favour to not inform the INS. This is a tacit conspiracy that works most of the time in everyone’s favour.

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The employer’s 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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