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The economy has not left anyone untouched by its dramatic impact. Stories of banking crises, bailouts, rising unemployment, plummeting securities and housing prices, rising inflation, rising gas and food prices, recession, depression, and laid off of foreign employees in the US abound.
Among the many worries of foreign national workers in the US on H-1B, the most worrisome these days is a layoff. This problem is often compounded by undefined terms and often contradictory interpretations of the immigration laws. So what should you do in case of a layoff? First of all you need to know the law really says. Let’s start by exploring one of the common myths attached to the H-1B category.
MYTH: An H-1B worker who is laid off has ten days to either apply for a new job or leave the US.
REALITY: This is absolutely untrue. The confusion regarding
the ‘ten day’ rule probably stems from the regulations at 8 C.F.R.
§214.2(h)(13)(I)(A). This regulation, which governs the time period to
be granted to a person entering the US on H-1B, states:
"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."
CASE SCENARIO – LAID OFF ON H-1B
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| Que. I was laid off a month ago and my company has informed me that they sent USCIS letter revoking my H-1B petition. What
happens if I find another H-1B employer in the meantime? Ans: USCIS generally takes several months to process H-1B revocation notices, which means that, as a practical matter, the revocation of the H-1B petition may not appear in the USCIS system for several months. However, this is merely a general statement and not official USCIS policy. One should therefore make efforts to find another job as soon as possible and have the new employer sponsor the H-1B employee for the H-1B petition at the earliest opportunity. One may encounter problems without the availability of current pay stubs as proof of continuing, valid H1B status. One may not be able to obtain an H-1B extension of stay and may be required to travel abroad to obtain a new H-1B visa or, at the very least, obtain a new I-94 card with H-1B status upon re-entry to the U.S. |
This regulation does not apply to those who have been laid off and are changing their employers or their nonimmigrant status. Various USCIS 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 of being laid off. However, these statements are merely opinions and do not have the force of law.
After a lay off: The following are suggested steps you should take in the event you are laid off:
NOTE: The amount of time that an H-1B worker may stay in the US after being laid off or terminated is not defined in the law or the regulations.
Application for Change of Status: Once obtain a new offer of employment; you should have the new employer submit an application to change H-1B employers as soon as possible.
Under AC-21, a worker may begin employment with the new employer as soon as the H-1B transfer petition is submitted to the USCIS. When the USCIS makes their decision on the new petition they have three choices. First, they can deny the petition, in which case you will have to depart from the US. Second, the H-1B transfer request will be approved. Or third, if the USCIS decides that too much time has elapsed since you were laid off or terminated, they will approve the H-1B petition and deny the application to change employers in the US. In this final scenario, after the Notice of Approval has been issued, you may depart the US and apply for a new H-1B visa abroad. If your old H-1B visa has not expired, you may be able to simply travel outside the US and return using your original H-1B visa and the original Notice of Approval (Form I-797) for your newly-approved H-1B petition.
What happens if the laid off H-1B worker is a beneficiary of an approved employment based immigrant visa petition?
If the laid off H-1B worker is the beneficiary of an approved employment based immigrant visa petition, depending on where the individual is in the process, one of two things can happen. If the foreign national had not filed for adjustment of status, or if it has been less than 180 days since filing for adjustment of status, he or she should have his or her new employer submit a new labor certification and a new EB visa petition on his or her behalf. He or she may be able to use his or her original priority date.
If the application of adjustment of status had been pending for over 180 days prior to the lay off, the foreign national worker may change jobs without jeopardizing his or her green card application, as long as the new job is in the same or a similar occupation.
If the laid-off H-1B worker has an EAD (Employment Authorization Document), he or she may immediately start working for a new employer using that EAD. The EAD is not employer specific; therefore losing your job does not invalidate it. Only the denial or termination of the application for adjustment of status does this. Again, depending on the circumstances the foreign national may need to have his or her new employer submit a new labor certification and visa petition on their behalf.
In some instances (i.e., where the employer has to file a new labor certification and immigrant visa petition, and the adjustment of status application may be denied before the new petition can be approved) it may be necessary for the foreign national to have his or her new employer file a new H-1B petition for him even though he is currently working using an EAD. If the H-1B visa for the previous employer has not expired, and there is an issue with the change of status, the foreign national may be able to simply travel outside the US and return using this original H-1B visa and his new original H-1B Notice of Approval (Form I-797).
Conclusion: The one thing you must remember if you are in H-1B status and you get laid off – don’t panic. You have a visa that is still valid and you are within your period of authorized stay so at this point you are NOT accruing unlawful presence, even though you fall out of status when you are no longer working for your H-1B sponsor. “Unlawful presence” is different from “out of status.” Unlawful presence means that you will not be allowed back into the US for many years. Specifically, 180 days to 365 days of unlawful presence means that you will be barred from the US for three years should you leave and attempt to return. Unlawful presence of over a year results in a 10 year bar to reentry should you leave the United States. The date on your I-94 rules the question of “unlawful presence” for purposes of the 3 and 10 year bars. If you still have time on your I-94 then you are not accruing unlawful presence until that date has passed.
This gives you time to look for new employment, if you don’t find new employment quickly you always have the option of filing for a change of status to that of a B-1/B-2 visitor, giving you additional time. You also have options if you are the beneficiary of an approved immigrant petition. If you have questions about what steps you should take in your particular situation, consult a competent immigration attorney. They will be able to guide you through the process.
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Coming to us off a European tour, Australian band Grace Before Meals is set to play at Yu Yin Tang tonight at the Indie China Showcase, along with six other bands from around China.
We had a chance to talk to frontman Vic McEwan in between his band's crazy rehearsal schedule:
How did the band come about?
The band started as a solo recording project by me. As the recording was completed I realized that I wanted to play these songs live but didn't want to plat under a solo name such as Vic McEwan, so The name Grace Before Meals was born.
I started practicing these songs with my girlfriend at the time Sarah Moor. She is a drummer and also plays piano. We organized to play a show together and realized that it would be nice to have some strings and of course needed some bass guitar to round out the sounds we had recorded. I had played in a band called Box Freezer Romance with Amelia Reid for some time so asked to come and play at our first show. Another friend Fiona Berry, was a viola player and so we asked her to join us and play. After a few rehearsals and a gig we realized we really liked playing together, and somehow it just felt very easy.
Another friend from Box Freezer Romance, Penny McBride also had some rehearsals with us. She was busy for our first couple of shows but continues to play with us and is on tour with us here in China. Fiona Berry, the viola player, wasn't able to travel at this time so our line up for these shows is piano, percussion, xylophone, bass and trumpet.
Mostly the people in this band came together because they are all so lovely to spend time with. And Sarah Moor and I got married the day before we left on this 3 months European and China tour. So this is really our Honeymoon Tour.
Why the name Grace Before Meals?
Grace Before Meals was simply a name that I had had in my head for maybe ten years and thought a band would be good with that name. To me the name isn't about anything religious but about a moment of quite contemplation and thanks for the good things around you. Maybe these songs are the sound track to that moment of quiet contemplation before people engage with the FRENZY of life.
Your first show was in 2008- what's it like to be playing a worldish tour already a year later?
We have all played in other bands all our lives, and still do play in other bands. Organizing a world tour so quickly is a great way to utilize the fresh energy that we have together. We all have a lot of energy for this band, not just for the playing music side of it but for the organizing part and for creating different experiences, whether they are musical, cultural or whatever. This band is full of people who have all had interesting life experiences and love to explore and to look into the cracks to find the undiscovered beauties.
How do you factor instruments like a viola and clarinet into a band?
The viola is such a beautiful instrument and under utilized in what is loosely termed "rock music". To me it is like adding a lace collar or a beautiful antique necklace to an outfit; it has such a haunting, beautiful, sad and uplifting tone, all at the same time. How could we have anything other that a viola?
The clarinet is an instrument I have been playing for only a few years. It doesn't feature in our live show much because I am playing piano, but there are plans to have some songs that are based on the clarinet in our live set. These songs are being explored in rehearsals at the moment.
Now the question every band hates: How would you describe your music?
I would describe our music as beautiful and creepy creepy music, that sounds a bit like a haunted house. I think at the same time our sound manages to feel beautiful, like the first stages of love, and sometimes fearful, like you're a tiny child lost in a crowded market place and all you can see is the legs of tall adults and the deafening drill of human chitter chatter and endeavor. Complete loss with no plan of action for escape.
What do you know/think about the Chinese bands you'll be playing with at Yu Yin Tang?
We don't know much about the line up for the show at YYT. The person who has organized this show for us seems to be involved in some interested music from China so we are excited to play with some current underground players in this country. We are looking forward to seeing and hearing what is happening here.
What next after China?
We have many plans! When we get home to Australia on the 22nd of July, myself and Sarah will be traveling to Townsville in Northern Australia where we will be installing a sound installation along the foreshore of Townsville. This will be exhibited for a month as part of an outdoor sculpture festival.
Before that we have our double EP launch in Sydney, then in October we travel to Melbourne for a launch and also play a show in the middle of the country in a dried out river. This will be part of a theatre show about water and the current drought in Australia that turns water into a precious commodity like gold. The show is called Gold.
Four days after we get home to Sydney, we have our first show there as part of a ten month program of shows/exhibitions that are being funded by the Arts Council of The Australian Governement. It is a very exciting opportunity for us to be given some support to showcase some underground music and art from Australia. Ideally we would love to bring out a Chinese band or two to showcase as part of this series of shows.
Next year we plan on touring Europe and China again and hopefully to spend one month together in Frankfurt, Germany making a theatre performance together.
What are you expecting from your show on Saturday?
On Saturday we hope to experience a real part of Chinese underground culture. Hopefully we will get to give and receive at this gig. I think there are some interesting angles being explored in this band that aren't very common in typical rock music, so we are looking forward to sharing that and to sharing in a real experience of Chinese underground music. We hope to learn from every little part of it.
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Posted by Aliv3 on October 21, 2008 at 9:41pm
Posted by Mayette on October 23, 2008 at 4:21pm
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