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1) If terminated, how long can an H-1B, F-1, L-1 visa holder remain in the US? (Statutory and practical).Under the law (statute, regulations, etc.), when the employment of a TN, H-1B or L-1 employee is terminated, his/her lawful nonimmigrant status terminates on the same day. There is no statutory grace period at the end of TN, H-1B and L-1 status. Remaining in the US after termination of TN, H-1B or L-1 employment is a failure to maintain lawful immigration status. This failure to maintain lawful immigration status affects the employee’s ability to (1) remain in the US, (2) be approved for other lawful nonimmigrant status, and (3) be approved for permanent residence. Effect on the employee’s ability to remain in the US. Under the law, one who remains in the US after termination of nonimmigrant status is subject to removal (deportation) from the United States. As a practical matter, the Immigration and Naturalization Service (INS) rarely removes (deports) those whose TN, H-1B or L-1 employment is terminated unless (1) the termination occurred more than 6 months ago and the employee has not been petitioned to work for another employer, or (2) the employee has violated immigration status in an additional manner (unauthorized employment, criminal behavior, etc.) Effect on the employee’s ability to be approved for other lawful nonimmigrant status. Under the law, one who remains in the US after termination of nonimmigrant status is ineligible for change, or extension, of nonimmigrant status. That is, one who remains in the US after termination of TN, H-1B or L-1 employment cannot be approved to work for another employer under another nonimmigrant classification, and cannot be approved for change status to visitor, student, etc. As a practical matter, the INS rarely denies change, or extension, of nonimmigrant status for a terminated employee unless (1) the termination occurred more than 3 months ago and the employee has not been petitioned to work for another employer, or (2) the employee has violated immigration status in an additional manner (unauthorized employment, criminal behavior, etc.) Effect on the employee’s ability to be approved for permanent residence. Permanent residence involves three steps: (1) labor certification, (2) immigrant visa petition, and (3) a choice between (a) adjustment of status or (b) consular processing. Labor Certification. The processing, approval or denial of a labor certification is made regardless of the employee´s maintenance of lawful immigration status. Thus, one who remains in the US after termination of nonimmigrant status is still eligible for approval of a labor certification. Immigrant Visa Petition. The processing, approval or denial of an immigrant visa petition is made regardless of the employee´s maintenance of lawful immigration status. Thus, one who remains in the US after termination of nonimmigrant status may still be the beneficiary of an approved immigrant visa petition. Adjustment of Status. Please note that the INS strictly follows the statute and regulations in processing adjustment of status applications. Under the law, an employment based immigrant who remains in the US after termination of nonimmigrant status is eligible for adjustment of status to permanent residence if (1) the period of loss of status totals less than 6 months and (2) the employee has not worked illegally. If the period of loss of legal status is greater than six months or the employee has worked illegally, the employee is eligible for adjustment of status only if a labor certification or immigrant visa petition was filed before April 30, 2001 and the employee pays a penalty fee to the INS. Thus, if the period of loss of legal status is greater than six months, or the employee has worked illegally, and a labor certification or immigrant visa petition was not filed before April 30, 2001, the employee’s termination will make the employee ineligible for adjustment of status to permanent residence. Under this circumstance, the employee would only be able to pursue permanent residence through consular processing (if at all). Consular Processing. Consular Processing is undertaken by the Department of State at a consulate outside the US which has its own rules for eligibility for visas. The Department of State strictly follows its rules in Consular Processing. Under the law, one who remains in the US after termination of nonimmigrant status is eligible for Consular Processing to permanent residence as long as the employee did not stay in the US for six months or more beyond the expiration of the nonimmigrant status. Expiration of status occurs when the underlying H-1B, L-1, TN, etc. petition expires, not when the status is terminated by loss of employment. Illegal employment is not relevant in Consular Processing to permanent residence, as long as the employee did not use fraudulent documents. If the employee did stay in the US for six months or more beyond the expiration of the nonimmigrant status, Consular Processing to permanent residence would be denied and the employee would be prevented from reentering the US for three years. Special Situations: F-1 and J-1 employees An F-1 student may work and remain in the US during the period of authorized “practical training,” plus sixty days. Under the statute, termination of employment of an F-1 employee working under practical training does not affect that employee’s immigration status. He or she may work for a new employer for the rest of the period of practical training, plus sixty days. No INS permission is required for an F-1 employee working under practical training to change employers during practical training. The period of practical training is indicated on the F-1 employee’s employment authorization card. A J-1 employee may work and remain in the US during the period of authorized “practical training” indicated on the J-1 employee’s immigration form IAP-66. A terminated J-1 employee may work for a new employer for the rest of the period of practical training, if authorized by the J-1 sponsoring organization. Some J-1 programs provide “employer specific” practical training and some provide unspecific practical training. This will be determined by the IAP-66. If the terminated J-1 employee was working under a nonspecific practical training, no INS permission is required to change employers. If the terminated J-1 employee was working under employer specific practical training, INS permission is required to change employers.
2) What happens to pending visa applications (i.e. F1 to H1B or H1B to permanent residency).Nonimmigrant Application Pending – if the employee is terminated while an application to change nonimmigrant status is pending (TN, B-1, H-1B, L-1, TN) the INS will continue to process the application unless it is withdrawn by the employer. Once the application is withdrawn, the INS will stop working on the application and whatever status the employee held before the application was filed will remain intact. If the employee’s status expired while the application to change nonimmigrant status is pending and the employee is terminated, the employee will be considered to have failed to maintain status, with the consequences described above. If the employee’s status did not expire while the application to change nonimmigrant status is pending and the employee is terminated, the employee will not be considered to have failed to maintain status, and should be eligible to have a new employer file a new application to change nonimmigrant status. Special Situations: F-1 and J-1 employees As stated above, a J-1 or F-1 status holder may work and remain in the US during the period of authorized “practical training.” If the J-1 or F-1 employee has been changed to H-1B and then terminated, the employer may withdraw its H-1B petition. This way, the former J-1 or F-1 period of authorized “practical training is restored so the employee may immediately work for the new employer and not have any period of unlawful status. A J-1 employee may work and remain in the US during the period of authorized “practical training” indicated on the J-1 employee’s immigration form IAP-66. Permanent Residence Process - If an employee is terminated during the permanent residence process, issues regarding the employee’s maintenance of nonimmigrant status (above) still apply. In addition, the employee may be able to transfer some benefit of the permanent residence process to a new employer, depending on what stage the case was in at the time of termination. The three stages in the permanent residence process are labor certification, immigrant visa petition, and adjustment of status. If the employee is terminated during the labor certification process (even after the labor certification is approved), the employee can transfer no benefit from the labor certification. The labor certification will be canceled and the employee will need to restart the labor certification process with a new employer. However, If the employee is terminated before the immigrant visa petition has been approved (even after the labor certification is approved), the employee can transfer no benefit from the labor certification. The labor certification will be canceled and the employee will need to restart the labor certification process with a new employer.
3) Is there any action the former employee can take to prolong his stay in the US?The employee can apply for change of status to B-2 visitor shortly after termination to serve as a bridge until a new H-1, TN, etc. petition is filed.
4) What are some issues that the employer must address?The employer must pay the cost of return transportation to country of origin to any terminated H-1B employee. The cost is required only for H-1B employees. The employer should inform the INS of the termination of employment. There is no deadline to do so. However, some companies set a specific date for sending notification to the INS of 90-180 days. The employer should provide the same post-termination benefits to visa employees as non-visa employees. This might include severance pay, outplacement services, continuation of health benefits, etc. The employer must provide to H-1B employees the same benefits provided to US workers. Provision of these benefits to other visa employees is not required by the immigration laws, but labor law probably mandates similar treatment regardless of immigration status. Since filing a labor certification before April 30, 2001 preserves eligibility for adjustment of status, The employer may decide to proceed with these filings for terminated employees. The labor certification application may be withdrawn by the employer after filing so that no further follow up is required. However, the fact that it was filed before 4/30/01 preserves the employee’s eligibility for adjustment of status through sponsorship by a new employer later.
5) Is there anything the employer can do to prolong the individuals stay in the US?The employer may delay notification of the INS indefinitely. The law does not place any deadline on an employer to inform the INS of termination of employment. 
James C. Wolf is a Certified Specialist, Immigration and Nationality Law, State Bar of California.
For more information visit: http://www.visawolf.com
Note: The information provided herein is of general nature, and should not be construed as legal advice. |
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