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Surviving an H1-B visa job layoff

Strategies for H1-B workers can do if they have recently lost their employment, or fear the worst is coming, so they can stay in the U.S.

Being a foreign national working in an American job can be a thankless task even in the best of years. No matter how good an employee, and no matter how hard the employer tried to fill the job with local talent, there is always some suspicion that the foreign national is taking a job away from an American. Multiply that suspicion by tens of thousands, and add the new fear of foreigners born from 9-11, and you have the plight of the H1-B worker in 2003. It is quite a turnaround from three years ago, when H1-B workers were so enthusiastically courted for IT jobs in America. But that was then.

How bad is the job picture for H1-B technology workers? Last year, half the 290,000 quota of H1-B workers went unfilled, according to the Division of Immigration and Naturalization, of the Department of Homeland Security. Of those hired, many have since been among the first to go when their employers was forced to downsize. This fall, the quota drops back to 65,000, and many immigration experts feel that won't even be filled.

According to Immigration and Naturalization Services (INS), foreign nationals working in the U.S. lose their H1-B status the moment they lose their jobs. Since the workers are only entitled to stay in the country to perform the jobs for which they were granted the visa, they must now return to their countries of origin. In recent years, these workers had 60 days in which to remain here. Since 9-11, that has been reduced to 30 days.

But don't panic. There are a few things H1-B workers can do if they have recently lost their employment, or fear the worst is coming, says Harry J. Joe, founder and attorney of the immigration law practice Jenkins & Gilchrist in Dallas, Texas.

The F-1 visa: Back to school time

If you're an out-of-status H1-B worker, one of the quickest ways to protect yourself is to attend a U.S. college or university on an F-1 student visa. Once you have actually made the application for college and the F-1 visa you are protecting yourself, Joe says, since you can then document a legitimate reason to remain in the U.S. while awaiting approval of your application.

Should you go this route, pursue a master's degree in a field other than technology, such as business, Joe suggests. This will increase your value once you complete the program.

H-1 protection: Send your spouse to college

If the better option for an international husband and wife team is for the spouse to seek a student F-1 visa, the H1-B worker can file for H-1 status. This allows the H-1 B worker to remain in the U.S. for the length of time the spouse is a student -- six years.

This option gives H1-B workers a lot of time to find new employment, whether they have just lost their jobs, or anticipate losing them shortly. And again, H1-B workers become protected in their immigration status the moment their spouses file for an F-1 visa, and they file for H-1 status.

Travel "tourist" class

By applying for "tourist" status with the INS, H1-B workers can remain in the U.S. for six months to see the sights. Those six months could do wonders for their ability to locate new employers. Once done, those employers can file for H1-B status for them for new jobs.

Plan B -- Oh, Canada!

If none of the above options pan out, H1-B workers that don't want to return home should file for visa status with neighboring Canada. It has less strict policies than the U.S. right now, Joe explains.

Last resorts -- leave quietly, and willingly

When all else fails, H1-B workers that can't get back into "status" should willingly return to their countries of origin quickly, Joe advises. This allows the worker to leave the U.S. on good terms, and in good grace. If H1-B workers lose visa status and remain past the 30-day period with no change in employment or education status, they will not be viewed favorably for new H1-B visas at a later time.

Parting advice to the H1-B employer

Employers also need to act quickly when H1-B workers lose their jobs, Joe notes. In fact, the employer must notify the INS of the change in status of worker immediately. Failure to do so not only violates the terms of the original visa approval, it makes employers liable for back wages to H1-B employees should they seek them. Employees could argue that their employers never terminated employment, and collect retroactive wages until they line up new jobs.

About the author: David Weldon is a freelance writer and IT staffing expert in Stoneham, Mass.



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