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INS Spokesperson, On Being Laid Off

Aseem Chaabra

For the last several weeks the media has been flooded with reports on the slowdown of H-1B visas. As large and small high tech companies announce layoffs and hiring freezes, speculation is rife about how this affects H-1B workers.

Confusion has also reigned with regard to the number of days out of status or laid off H-1B workers have to find a new job before they must leave the United States.

In the midst of all the conflicting information, the Immigration and Naturalization Services released figures this week on the use of H-1B visas this year. Of the 195,000 visas available for 2001, 72,000 have been issued and another 66,000 are currently being processed. Last year at the same time, 74,000 visas had been issued and 45,000 were being considered. In addition, last year Congress allowed another 45,000 visas to be processed, after the 2000 cap had been met, but before the 2001 clock had started to click.

To clear the air, rediff.com spoke with Eyleen Schmidt, a spokesperson for the Immigration and Naturalization Services in Washington DC.

The usage of H-1B visas for 2001 is very close to that for 2000. But since there are 85,000 more visas available for 2001, clearly we are not using them all.

Well, no, we are on the same pace as we were last year, except last year we had to stop at 115,000, where as this year we can keep on going.

But there doesn't seem to be higher demand.

You can't say there is no higher demand, because you don't know what would have happened if the cap wasn't 115,000 last year. You don't know how many employers didn't file or decided to wait until later because of the fact that we hit the 2000 cap in March 2000. It is a very difficult correlation to make, because you are dealing with a much smaller number for one year and a much larger number for the other year.

So with all this talk going on about slowdown in the economy and layoffs of H-1B workers, your numbers do not actually show that.

Right, and that is not unusual, because we are not a leading indicator, we are behind. In other words when we show something, it would be after the fact, not ahead of it. It doesn't surprise me that our numbers are not reflective of anything.

Also if you included the 45,000 application filed and approved after the cap of 115,000...

Right, those would have normally gone to the 2001 cap.

The reports in the media in the past week about what happens to an H-1B visa worker once she/he has been laid off have been confusing.

The stories are confusing, because it is actually rather a confusing matter. Technically -- and of course there are always exceptions and you can try other possibilities -- there is no time period to find another job. Once you are out of status, you are out of status. Once your job is terminated, you are out of status.

Once you are out of status you should be getting ready to leave. However, if you want to stay and you are looking for a new employer, after you have been terminated, you cannot take any part-time work. If you take part-time work, you have ruined your chances of the authorization to go through. Once you are fired, don't take a part-time job, don't take anything. If you find an employer who is willing to sponsor you, still don't start with him until you get the INS approval.

Once you are out of status, INS can't grant you any benefits, which means any application, related to extension of stay, change of status. We cannot make any decision on any application unless you are in status.

In order to file a petition with INS, it has to be filed in a timely manner, and which means that you are in status at the point when your petition is filed.

How can you be in status when you have just lost your job?

There is an exception. The exception to the timely filing rule is that INS can go ahead and adjudicate and grant your petition, if you can prove -- and this is done on case by case basis -- that there were extraordinary circumstances that surrounded your loss of status.

What do extraordinary circumstances mean? When you lose your status, when you have been fired or laid off, aren't those extraordinary circumstances from the point of view of an H-1B worker? Extraordinary because they have come from a foreign country, they have got homes, furniture, cars, debts, etc. They can't just sell it all and leave immediately.

They don't have to leave immediately. They have reasonable time in which to settle their affairs. There is no definition for extraordinary circumstances for H-1B workers because that particular phrase is actually part of regulation for filing any petition with INS -- H-1B, F1, adjustment of status, etc.

Something like this could be extraordinary circumstances -- I walked into my office one Friday morning and the pink severance package is on my desk and there was no warning. Or if your company announces there will be layoffs, but they are not indicating who will be laid off. What might not be considered extraordinary circumstances, is if you knew two months in advance that you were going to be laid off. The company can maintain that we told our employees two months ago and they had time to find a new job. That still could be an extraordinary circumstance, if something prevented a worker from looking for another job.

If they know two months in advance, they have the option of starting to interview elsewhere, and if another employer hires them, then that employer will approach INS saying that they want to transfer the H-1B worker.

If the employee is still in status at that point, then they can take advantage of portability and immediately begin working for the new employer. You can go to the new employer as soon as that employer files with INS under the portability provisions of the new law that was recently passed. They can work while we are doing the paper work.

However if you are out of status, you have to wait for the INS approval because you have to wait and see whether INS will say that your circumstances were extraordinary.

There was this general belief that people had 10 days from the time they were laid off, to find another job. Where did that come from?

The 10 days to find a new job is a myth. But the 10 days concept does exist in immigration law. What the 10 days is that at the end of the period of their (H-1B workers) admission -- the end of their whole six years or three years, if they decide that they don't want to stay any longer in the United States, that they don't want an extension, maybe because there are better opportunities in India, or whatever, then they have 10 additional days, after the last day of their work, before they leave for their home country.

We are still not sure what the rule is. If you are out of status, then how much time is there to convince the INS on the extraordinary circumstances issue -- how long, is a month OK?

That's the thing. There is no set time limit to how long it takes to find a job. Extraordinary circumstances don't relate to how long it will take to find the job. You have to prove there were extraordinary circumstances surrounding your firing. Obviously, the quicker you find a job, the easier it is for you.

You say it is based on an individual, case by case basis...

...it's to whether the circumstances surrounding your firing were extraordinary.

You were quoted in the press as saying to H-1B workers: "Don't panic until, you are told differently, you are OK." But people are concerned, maybe even panicking.

Yes, I know people are panicking. That goes to another thing called presumption of authorized stay. If you are encountered by an INS official -- although you are out of status, you wouldn't appear to be deportable to someone from INS, until your visa is revoked. That happens, when your employer notifies INS and INS goes through visa revocation process, which could take a while.

When you are laid off, you find a job, you take the chance that INS will find the extraordinary circumstances in your case. If the INS doesn't find extraordinary circumstances related to your firing, then again the visa revocation process starts. At that point in time, if you are encountered by an INS official, they would consider you deportable.

But what does encounter mean? Do you conduct raids at job locations? I have seen movies where the INS conducts raids to catch illegal Chinese or Mexican restaurant workers.

No, I mean if you just happen to walking down the street and you encounter an INS official ... it's an odd concept.

But, if an H-1B visa worker is laid off she/he is taking a chance. There is absolutely no guarantee that the INS adjudicator will find their circumstances extraordinary.

So what advice would you give to an H-1B visa worker?

This is the advice I would give: The choice is theirs if they want to stay and try to take a chance of getting waiver under the extraordinary circumstances policy. If they do take that option, they have to know that the adjudicator can only make the decision based on the evidence presented. So the more evidence they can provide that their circumstances were extraordinary, the better chance they have at getting that waiver.

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