h1-b layoff followup questions

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Old Mar 8th 2002, 12:05 am
  #1  
Web Master
Guest
 
Posts: n/a
Default h1-b layoff followup questions

Thanks to Ingo and others for answering previous questions on H1-B layoffs

Note: According to the immigration attorney that I spoke to the 10 day rule is a myth
and technically an H1-B person is out of status as soon as they are laid off.

I have some followup questions:

1) It seems there is a tradeoff for a H1-B layed off person - either:

a) Get a B2 visa immediately and be safe from being out of status, but then be
forced to wait for a H1-B approval notice should they find another job
(a.a. can't switch immediately to new job anymore).

Or

b) Dont change to B2 just yet, just try really hard to get another job - but
then risk:
i) Not being able to get a B2 (if it looks like they cant find a job) or
ii) Getting a new H1-B petition approval (if they find a new job) or
iii) Risk being deported.

Which route do you recommend?

2) If the person does go the B2 route, then dont they have to show evidence of
"intent" to leave after the 6 month B2 time period? - How strict is the INS likely
to be about this? And if the B2 is granted then wont the person run into problems
trying to convert that back to H1-B?
 
Old Mar 8th 2002, 3:35 am
  #2  
Stuart Brook
Guest
 
Posts: n/a
Default Re: h1-b layoff followup questions

No one in their right mind will "recommend" anything but tell you to take legal
advice or follow the law.

That said, note that for 1(b) you have 60 days for your new employer to file a
transfer petition from the date you were laid off. That in reality translates to give
you maybe 30-45 days to find new employment. Not long at all. You may have to leave
the US and re-enter to get your new status, since you've been out of status and thus
potentially incur the questioning of an INS officer at a port of entry.

The longer you wait under 1(b) to get a new job, the lower your chances of changing
status to a B2 visitor.

Under 1(a) note that a change to a B2 may not be approved anyway, especially if you
ask for a period inconsistent with what they deem as reasonable to get out of the US,
considering that technically to get a change to B2 you must have a residence abroad
you have no intention of abandoning! So even that's not necessarily safe either. Some
imm. atty's won't file for a B2 for you anyway! If you put down as a reason for
requesting a B2 "Look for new H1B employment" your B2 will undoubtedly be refused.

Chances of deportation are not that great, but not non-existent ... probably depends
on who you've offended during your time in the US (believe it or not!)

There are maybe 2 valid reasons to request a change to B2 ... first is to give you
time to wind down your US affairs ... and the second is to provide for some time for
a vacation ... and in both cases the critical thing is these are done in preparation
for returning home. You can request a reasonable time, but 6 months would undoubtedly
be considered unreasonable. Experience and anecdotes have suggested that 3 months may
be pushing your luck with requests for evidence.

Note that it is unlikely that your B2 approval will arrive before the time requested
expires. You must either have found and applied for a H1B transfer or a new H1B in
that time, or you must leave by the date you requested until.

The longer you request on a B2, the more strict the INS will be about evidence of a
residence abroad and about proving your intent to depart.

Going with a B2 will in fact show that you were aware of your situation and that you
needed to maintain status while in the USA. It should not hurt a subsequent H1B
application.

This is NOT legal advice and is not intended to be a substitute for legal advice. It
is solely for your information to better inform yourself when talking with your
lawyer. These comments are based on personal research and experiences, and the
anecdotal research and experiences of others. It is worth every penny you paid for it
... in other words ... absolutely nothing!

Stuart

Web Master wrote:
    >
    > Thanks to Ingo and others for answering previous questions on H1-B layoffs
    >
    > Note: According to the immigration attorney that I spoke to the 10 day rule is a
    > myth and technically an H1-B person is out of status as soon as they are laid
    > off.
    >
    > I have some followup questions:
    >
    > 1) It seems there is a tradeoff for a H1-B layed off person - either:
    >
    > a) Get a B2 visa immediately and be safe from being out of status, but then be
    > forced to wait for a H1-B approval notice should they find another job
    > (e.g. can't switch immediately to new job anymore).
    >
    > Or
    >
    > b) Dont change to B2 just yet, just try really hard to get another job - but then
    > risk:
    > i) Not being able to get a B2 (if it looks like they cant find a job) or
    > ii) Getting a new H1-B petition approval (if they find a new job) or
    > iii) Risk being deported.
    >
    > Which route do you recommend?
    >
    > 2) If the person does go the B2 route, then dont they have to show evidence of
    > "intent" to leave after the 6 month B2 time period? - How strict is the INS
    > likely to be about this? And if the B2 is granted then wont the person run into
    > problems trying to convert that back to H1-B?
 
Old Mar 8th 2002, 5:35 am
  #3  
Dave
Guest
 
Posts: n/a
Default Re: h1-b layoff followup questions

Stuart Thank you so much. To clarify the advice is for an employee of mine who was
layed off. I am very greatful. Dave "Stuart Brook" <[email protected]>
wrote in message news:[email protected]...
    > No one in their right mind will "recommend" anything but tell you to take legal
    > advice or follow the law.
    >
    > That said, note that for 1(b) you have 60 days for your new employer to file a
    > transfer petition from the date you were laid off. That in reality translates to
    > give you maybe 30-45 days to find new employment. Not long at all. You may have to
    > leave the US and re-enter to get your new status, since you've been out of status
    > and thus potentially incur the questioning of an INS officer at a port of entry.
    >
    > The longer you wait under 1(b) to get a new job, the lower your chances of changing
    > status to a B2 visitor.
    >
    > Under 1(a) note that a change to a B2 may not be approved anyway, especially if you
    > ask for a period inconsistent with what they deem as reasonable to get out of the
    > US, considering that technically to get a change to B2 you must have a residence
    > abroad you have no intention of abandoning! So even that's not necessarily safe
    > either. Some imm. atty's won't file for a B2 for you anyway! If you put down as a
    > reason for requesting a B2 "Look for new H1B employment" your B2 will undoubtedly
    > be refused.
    >
    > Chances of deportation are not that great, but not non-existent ... probably
    > depends on who you've offended during your time in the US (believe it or not!)
    >
    > There are maybe 2 valid reasons to request a change to B2 ... first is to give you
    > time to wind down your US affairs ... and the second is to provide for some time
    > for a vacation ... and in both cases the critical thing is these are done in
    > preparation for returning home. You can request a reasonable time, but 6 months
    > would undoubtedly be considered unreasonable. Experience and anecdotes have
    > suggested that 3 months may be pushing your luck with requests for evidence.
    >
    > Note that it is unlikely that your B2 approval will arrive before the time
    > requested expires. You must either have found and applied for a H1B transfer or a
    > new H1B in that time, or you must leave by the date you requested until.
    >
    > The longer you request on a B2, the more strict the INS will be about evidence of a
    > residence abroad and about proving your intent to depart.
    >
    > Going with a B2 will in fact show that you were aware of your situation and that
    > you needed to maintain status while in the USA. It should not hurt a subsequent H1B
    > application.
    >
    > This is NOT legal advice and is not intended to be a substitute for legal advice.
    > It is solely for your information to better inform yourself when talking with your
    > lawyer. These comments are based on personal research and experiences, and the
    > anecdotal research and experiences of others. It is worth every penny you paid for
    > it ... in other words ... absolutely nothing!
    >
    > Stuart
    >
    > Web Master wrote:
    > >
    > > Thanks to Ingo and others for answering previous questions on H1-B
layoffs
    > >
    > > Note: According to the immigration attorney that I spoke to the 10 day
rule
    > > is a myth and technically an H1-B person is out of status as soon as
they
    > > are laid off.
    > >
    > > I have some followup questions:
    > >
    > > 1) It seems there is a tradeoff for a H1-B layed off person - either:
    > >
    > > a) Get a B2 visa immediately and be safe from being out of status, but
then
    > > be forced to wait for a H1-B approval notice should they find another
job
    > > (e.g. can't switch immediately to new job anymore).
    > >
    > > Or
    > >
    > > b) Dont change to B2 just yet, just try really hard to get another job -
but
    > > then risk:
    > > i) Not being able to get a B2 (if it looks like they cant find a job) or
    > > ii) Getting a new H1-B petition approval (if they find a new job) or
    > > iii) Risk being deported.
    > >
    > > Which route do you recommend?
    > >
    > > 2) If the person does go the B2 route, then dont they have to show
evidence
    > > of "intent" to leave after the 6 month B2 time period? - How strict is
the
    > > INS likely to be about this? And if the B2 is granted then wont the
person
    > > run into problems trying to convert that back to H1-B?
 
Old Mar 8th 2002, 2:35 pm
  #4  
Samsonamerican
Guest
 
Posts: n/a
Default Re: h1-b layoff followup questions

WebMaster,

Please consider another option. H-1Bs are temporary workers that must go home when
they are no longer needed. The H-1B visa expires for a reason. You should not compete
against American citizens that are also out of work. I would not do the same to you
if I were in your country. You were allowed into this country to cover a presumed
shortage of American citizens, not to compete against American citizens. There is no
shortage, and you should now go home. If you continue to be a criminal by staying
illegally in the U.S., you risk not being able to come back. Being a criminal
undermines your credibility as person, a professional, and a peer. I have many very
good friends who are H-1Bs. It pains me to see them exploited for cheap labor, and it
pains me to see them laid-off and leave the country. However, the H-1B program has
mandated laws that must be respected. I recommend that you respect the laws of this
country and go back home.

www.HireAmericanCitizens.org

"Web Master" <[email protected]> wrote in message
news:[email protected]...
    > Thanks to Ingo and others for answering previous questions on H1-B layoffs
    >
    > Note: According to the immigration attorney that I spoke to the 10 day
rule
    > is a myth and technically an H1-B person is out of status as soon as they are
    > laid off.
    >
    > I have some followup questions:
    >
    > 1) It seems there is a tradeoff for a H1-B layed off person - either:
    >
    > a) Get a B2 visa immediately and be safe from being out of status, but
then
    > be forced to wait for a H1-B approval notice should they find another job
    > (e.g. can't switch immediately to new job anymore).
    >
    > Or
    >
    > b) Dont change to B2 just yet, just try really hard to get another job -
but
    > then risk:
    > i) Not being able to get a B2 (if it looks like they cant find a job) or
    > ii) Getting a new H1-B petition approval (if they find a new job) or
    > iii) Risk being deported.
    >
    > Which route do you recommend?
    >
    > 2) If the person does go the B2 route, then dont they have to show
evidence
    > of "intent" to leave after the 6 month B2 time period? - How strict is the INS
    > likely to be about this? And if the B2 is granted then wont the
person
    > run into problems trying to convert that back to H1-B?
    >
 
Old Mar 9th 2002, 3:05 am
  #5  
Ingo Pakleppa
Guest
 
Posts: n/a
Default Re: h1-b layoff followup questions

On Thu, 7 Mar 2002 18:02:33 -0700, "Web Master" <[email protected]> wrote:

    >Thanks to Ingo and others for answering previous questions on H1-B layoffs
    >
    >Note: According to the immigration attorney that I spoke to the 10 day rule is a
    > myth and technically an H1-B person is out of status as soon as they are laid
    > off.
    >
    >I have some followup questions:
    >
    >1) It seems there is a tradeoff for a H1-B layed off person - either:
    >
    > a) Get a B2 visa immediately and be safe from being out of status, but then be
    > forced to wait for a H1-B approval notice should they find another job
    >(e.g. can't switch immediately to new job anymore).

Actually, you still can start working immediately - even if you switch to B-2 status,
the new H-1B would still be considered a transfer for these purposes as long as it is
filed within 60 days.

That said, it may not make much difference any more in the day of fast premium
processing.

    >Or
    >
    > b) Dont change to B2 just yet, just try really hard to get another job - but then
    > risk:
    > i) Not being able to get a B2 (if it looks like they cant find a job) or
    > ii) Getting a new H1-B petition approval (if they find a new job) or
    >iii) Risk being deported.

INS will indeed sometimes excuse you being out of status for such reasons, but it's
not a chance worth taking.

    >Which route do you recommend?

If I was the H-1B in question, it would be a).

    >2) If the person does go the B2 route, then dont they have to show evidence of
    > "intent" to leave after the 6 month B2 time period? - How strict is the INS
    > likely to be about this? And if the B2 is granted then wont the person run into
    > problems trying to convert that back to H1-B?

In practical terms, the B-2 probably won't even be decided in six months, so the
issue would never come up. By the time INS decides about it, he probably already has
his new H-1B. Just give a reason that holds up to scrutiny (don't say "I need a few
weeks to wrap up my affairs" if you really plan to find a new job) and it isn't too
blatantly obvious that you plan to stay in the US and change status again (you don't
want your application denied on the front end right when they enter it into the
computer).

Ingo

I am not a lawyer and this is not legal advice. For reliable advice, please consult
with a professional immigration attorney.

For further information, check the following frequently-requested links.

For many questions, you may find answers at
http://travel.state.gov/visa_services.html (Department of State)

or http://ins.usdoj.gov (INS).

For consular policies and visa reciprocity fees, find your consulate in
http://travel.state.gov/links.html

For DOL Faxback status information: http://workforcesecurity.doleta.gov/

For information on affidavit of support for marriage to US citizens (I-864), go to
http://travel.state.gov/i864gen.html and http://travel.state.gov/checklist.html

For information on entering the US as a K-1: http://www.k1poelist.com/

For poverty levels, see http://aspe.os.dhhs.gov/poverty/00poverty.htm

For information on H/L/O/P visa extensions at Dept. of State in St. Louis, MO, see
http://travel.state.gov/revals.html

For non-official information, check:

(When using these sites, and any Web sites, please watch out for privacy, as I do not
know all site operators.)

http://www.visalaw.com http://www.shusterman.com http://www.immigration.com
http://members.aol.com/MDUdall http://www.murthy.com/ http://www.richw.org/dualcit/
(dual citizenship FAQ) http://www.ilw.com/pederson/visa.htm (dual citizenship info)
http://www.srs-usvisa.com http://www.getusavisa.com
http://greencard-lottery.virtualave.net/ http://www.jcvisa.com (H-1B)
http://www.h1bresources.com (marriage and fiancee) http://www.kamya.com/misc/
(marriage and fiancee) http://www2.apex.net/users/thehydes http://www.formshome.com
http://www.workpermit.com

This is not an endorsement of any of these Web sites. I am not affiliated with any of
the Web site owners and do not receive nor accept payment in return for listing them,
and typically don't even know them.

(if believe you have a good immigration-related Web site and want your Web site
listed here, please e-mail me).
 

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