How To: Survive a Lay Off in USA as a H1-B Worker

Amongst all the worries of a tech job these days, the most worrisome is a layoff. This problem is elevated by undefined and often contradictory interpretition of the INS law. So what should you do in case of a layoff?

Well first of all you need to know the law. Here is what I have found to be the
best layman friendly explanation to the parts of INS law pertaining to H-1B
workers.

"First of all, too many persons have stated that an H-1B worker who is laid off has ten days to either apply for a new job or leave the U.S. This is completely untrue.
The confusion regarding the "ten day" rule stems from the following regulation (8 C.F.R. §214.2(h)(13)(I)(A)):

A beneficiary shall be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. The beneficiary may not work except during the validity period of the petition.
This regulation governs H-1B workers who are leaving the U.S., not those who are changing their employers or their nonimmigrant status.

Where an H-1B worker has been laid off or terminated, and his H-1B petition has not been revoked, the worker may request a change of status to another nonimmigrant category while he seeks employment. If the worker locates suitable employment, the new employer to submit an H-1B petition to the INS and request a change of employers. The amount of time that an H-1B worker may stay in the U.S. after being laid off or terminated is not defined in the law or the regulations. Various INS officials over the years have opined the H-1B worker must submit an application for a change of employers within 30 days or 60 days. However, these statements are merely opinions and do not have the force of law.

The wise worker will obtain an offer of employment, and have the new employer submit an application to change H-1B employers, as soon as possible. Under AC-21, the H-1B cap law enacted during October 2000, the worker may commence employment with the new employer as soon as the H-1B transfer petition is submitted to the INS. Either it will be approved, or if the INS decides that too much time has elapsed since the worker was laid off or terminated, the INS will approve the H-1B petition and deny the application to change employers in the U.S. In the later case, once a Notice of Approval is issued, the worker may depart the U.S. and apply for a new H-1B visa abroad. If his old H-1B visa has not expired, he may be able to simply travel outside the U.S. and return using his original H-1B visa and his original Notice of Approval (form I-797) of his newly-approved H-1B petition."

What Does It Mean?

If an H-1B worker is laid off or terminated, and can not quickly obtain a professional offer of employment, another alternative is to submit an application to change status to a B-1 business visitor or a B-2 tourist while he looks for work. When he finds a job, the new employer may apply to the INS to change his status back to H-1B.

Finally, what happens if the laid off worker is already the beneficiary of an approved employment-based visa petition? In this case, the worker should have his new employer submit an RIR labor certification and an EB visa petition on his behalf. He will be able to use his original priority date.

If the laid-off worker is working using an EAD, he may immediately start working for a new employer. Losing one's job does not invalidate an EAD. Only the denial of the application for adjustment of status does this. Again, the worker should have his new employer submit an RIR labor certification and a visa petition on his behalf as soon as possible.
Where the processing of applications for adjustment of status for persons with approved EB petitions takes only a few months to be approved (e.g., at the California Service Center), there may not be time to obtain the approval of a new labor certification and visa petition before the application for adjustment of status is adjudicated.

If this is the case, it may be necessary for the worker to have his employer file a new H-1B petition for him even though he is currently working using an EAD. Again, if his old H-1B visa has not expired, he may be able to travel outside the U.S. and return using his original H-1B visa and his original Notice of Approval (form I-797) of his newly-approved H-1B petition.
Of course, if the application of adjustment of status was pending for over 180 days prior to the lay off, the worker may change jobs without jeopardizing his green card application as long as the new job is in the same or a similar occupation. "

So it should be clear by now that the INS law does not define any amount of time that a H-1B worker can spend legally in the country after a layoff.

What is the best option in this case?

Well this is a tried and tested two phase action plan :

a) Show a good faith effort to stay legal in the country by applying for a B1/B2 change of status application within thirty (30) days of the layoff. You will need a copy of your itinerary showing intent to leave at the end of B1/B2 status. You will also need financial proof in the shape of a bank statement showing that you have enough money to stay here. Also, ask your lawyer to write an application which says that you need to take care of your financial and material responsibilities before you leave and thus require the change of status.

b) Now you can start looking for a new sponsor for your H-1B visa and the rest is simple and well documented.

Secondly, remember that job search itself is a full time job. It requires determination, discipline and a sense of humor. Here are a few steps which have helped me through the experience both times I have been handed the pink slip.

a) Always keep your resume updated even if you think your job is secure. Add whatever new skills you have gained on the job and make sure you use action verbs and key words.

b) Make sure you display some material benefit that you have contributed to the employer through your use of technical or whatsoever skills. For example, Successfully cut annual HR costs by $30,000 through automating of direct deposit delivery for a four hundred employee company.

c) Do not try to push the limits beyond what you can back up during the interview. If you fluff up your resume with skills and work experience you do not posess, you will be weeded out sooner or later. Its better to stick to what you know best and use the interview as an opportunity to display your overall understanding of the industry and specific implementation with the prospective employer.

d) Networking is the best way to get quick and good interviews. Ask your friends to refer your resume within their work environment. Also, get contact numbers and email addresses for recruiters and HR personel beyond their employer. A good reference through a friend will get you to a point where you can try to impress some one with the reach to get you the job. Atleast you will have an opportunity to do so any ways.

e) Spend this free time to increase your knowledge about the skills you know currently, but most importantly learn new skills. Make Google your best friend if it isn't already. There are a million free resources online where you can learn the latest skills in your line of work.

f) Use your new freedom to pray at the masjid instead of praying in your office cubicle. Read the holy Quran with translation and tafseer and try to attend Ulema's lectures. Also pray for knowledge, clarity and fluency during interviews.

g) When you do get that quick interview, make sure that you are professional as well as personable. Many recruiters will tell you that they work harder for people who show them some personality and discuss with them other aspects of their lives along with their technical prowess. Give lenghty yet meaningful answers to all their questions and always ask meaningful questions in the end.

h) Try spending more time with friends and/or relatives whom you have been ignoring because of those late night deployment problems. It takes special effort to avoid depression and tension during this time and good comapny will always elevate the mood.
Finally, you have probably come here to study and then moved on to a career. This may be the time to think about moving back to the home country and using your experience and skills to secure a career closer to your family and friends.

In any case, if you have come upon this situation, remember that God works in mysterious ways. Just keep the faith, work hard, hope for the best and leave the rest to fate. You had a good run at it while it lasted anyways.