Lay off during Eight Year H-1B

Published on    30 June 2014     Hits: 800

In my experience, although EB2 (second preference employment based)  green card case is more complex than EB3 (third preference employment  based) green card case, the probability of success is much higher with  EB2.  Why?

EB3 cases for skilled workers and professionals have recently taken 6-7  years to resolve where as EB2 cases for members of professions holding  advanced degrees are mostly resolved within a year.  Because of the  sheer length of the wait time for EB3, many unforeseen events can  happen.  More commonly, economic environment and sponsor employer’s  business may change, and the job may get eliminated.  That is why it is  not a surprise, although extremely sad and concerning, for us to be  contacted by an employee that he just received a lay-off notice after  having been in H-1B for many years and waiting for his EB3 green card  case’s priority date to become current.

Let’s think about a hypothetical example to see what can happen in this situation.
After graduating from college, Mr. A began working for Company in  H-1B.  After he’s worked for Company for 3 years, Company offered green  card sponsorship to Mr. A, and the process began.  PERM application and  Form I-140 have all been approved.  While waiting for his priority date  to become current for his EB3 green card case, Mr. A extended his H-1B  for another 3 years.  When his 6 year was up, he was able to extend H-1B  once again based on the pending green card case’s I-140 approval.  Mr. A  is now in his 8th year of H-1B and working for Company.  Mr.  A still needs to wait another couple of years before he can finally  proceed to the last step of his EB3 case and obtain green card.  Company  has experienced a big loss of business and decided to lay off some  staff.  Mr. A was one of them.  He is given one month notice.  What  options does he have?

1. H-1B employment is normally allowed up to 6 years.  Mr. A was able  to extend beyond 6 years because of his pending green card case with  his employer.  Can he transfer to another employer in H-1B although he  has used up 6 years?

Yes, H-1B transfer is allowed.  As long as an I-140 petition was  approved, Mr. A may continue to extend his H-1B even with an employer  other than the one that sponsored his I-140 petition.

2. What about the green card process?  Is it over?

If the original sponsor does not continue the job offer, the green card  case can’t proceed any further.  If Mr. A wants to obtain green card,  he will have to begin the whole process from the very beginning.   However, there is one advantage to having an I-140 petition approved  previously.  Mr. A may keep his priority date.  That is, if his priority  date is January 1, 2008, even if his new case starts only in 2012, his  new case will be assigned his old priority date of January 1, 2008.   This is a major advantage because now he does not have to wait another  6-7 years.  His wait time will be reduced by the amount of time that has  passed since he had his first priority date established.

3. How much time do I have?  Do I need to leave the US right away?

The moment the H-1B position is terminated, Mr. A becomes out of  status.  However, if the position was terminated before the end of the  H-1B validity date, and his I-94 is still valid, Mr. A is likely to be  given a reasonable period of time to either make a transfer to another  employer or make arrangements to move back to his home country.  USCIS  has overlooked 1-2 months gap between the last H-1B employment and the  filing date of a new application to change status or petition to change  employer.  Unlike F-1, there is no statutory grace period.  The above  practice seems to be based on the understanding of the reality and  reasonable exercise of discretion.  Depending on the situation, Mr. A  may have a little more time or less time to prepare for the next step.   Because of many uncertainties, Mr. A should at least consult an attorney  about how much time he can have or what actions he should take without  jeopardizing his chance of being able to return to the US whether  permanently or on business or pleasure.

Mario Guevara-Martinez