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A Break For H1-B Visa Holders

Ritesh Patel knows what will happen if he loses his software engineering job with Nortel Networks.

He's seen friends get laid off. With the economy sputtering, he wonders if he's next. As an H1-B visa holder, he says it would mean a scramble to stay put.

"I'd have to get a new job in 10 days and get my employers to transfer my visa, otherwise I would have to leave the country. That's what the INS tells everyone," Patel says.

With noticeable relief, he admits he's glad he just found out that he's wrong.

If there is any good news to be found in the current climate of dot-com busts, a drooping economy and established giants like Intel executing thousands of layoffs, Indian tech workers in America on H1-B visas can take heart that the INS is willing to cut them a break.

H1-B holders have traditionally thought that if they lost their job, they would have 10 days to find a new one or head back home, even though there's nothing in immigration law that stipulates any specific amount of time you can be unemployed.

Regardless, the Immigration and Naturalization Services says that given the current economy, they're willing "to let things slide" and let H1-Bs stay in the United States-provided they can prove they are an "extraordinary case."

"The visa holder can stay in the country until the date on the entry ticket in the passport," says Eyleen Schmidt, the Federal agency's spokesperson.

H-1B visas are good for three years, Schmidt explains, and if an H1-B worker is terminated from their job, they are no longer in status, but still authorized to remain in the US.

Technically, being out of status means you are in the US and not doing what your visa was granted for. It doesn't mean you are in the country illegally.

So for everyone who went home when they couldn't find a new job, guess what? You didn't have to.

"Some people will get on a plane and leave the country to comply with a non-existent law-when they actually have some wiggle room to find a new job and stay on in the country," Dyann DelVecchio, an immigration attorney with Boston law firm Palmer and Dodge, told Wired News.

Schmidt is sympathetic: "Immigration law is relatively complex, and tends to lead to confusion ... it's easily misinterpreted."

She says that INS officials are meeting in Washington daily to determine what was the best way to deal with the plight of H1-B workers in the current market. She would not give any timeframe for when new resolutions could be passed.

The burden is on workers, though, to prove they are in dire straits.

"There is no language when it comes to determining 'extraordinary circumstances,'" Schmidt said. "It's looked at case by case. The more evidence you can put forward to INS officers, the better your case will be considered extraordinary circumstances."

Employees on H1-B visas, like Patel, welcomed the change, but remained cautious. "It sounds like good news, but what I feel is that if I'm out of status, my chances of getting a green card are bad," he says. "If I want to get permanent residence, I would want to stay in legal status."

Schmidt says that is a valid concern. "Yes, being out of status would affect an application for permanent residency," she says. "If a person was fired or had lost their job, that would completely negate the process. But we're working on regulations for cases like that too."

Patel hopes that the INS will also allow the green card process to continue for people laid off and looking for a new employer: "Definitely, that would be the ideal situation."

(Shaheen Pasha contributed to this story.)

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