Several scenarios may cause an H-1B visa holder to become unable to transfer her petition to another employer. If the H-1B visa worker is laid off, terminated, works less than the hours specified in her H-1B visa petition, or if she does not receive compensation for the work she actually performed, the H-1B visa holder may lose H-1B visa status. If the H-1B visa holder is deemed “out o f status” she will not be able to transfer her H-1B visa to another employer.“Out of Status” vs. “Unlawful Presence”
Generally, if a person falls out of status, they could not get back into status and remain in the United States at the same time. Departing the US when the alien is “out of status” and “unlawfully present” will give rise to serious visa complications. Overstaying in the US beyond an alien’s maximum allowable period causes the alien to become “unlawfully present.” Hence, unlawful presence occurs when a person stays in the US beyond the date specified on one’s Arrival/Departure record Form I-94 or I-797 visa approval notice.
Unlawful presence could trigger certain statutory bars from future immigration benefits; but such statutory bars happen only upon the alien’s departure from the US, not when the person remains in the US. For instance accruing unlawful presence for more than 180 days AND departing the US causes the alien to be barred from receiving future immigration benefits for three (3) years. Accruing unlawful presence for more than one year AND departing the US causes the alien to be barred from receiving future immigration benefits for ten (10) years.
Being “out of status” is not the same as being “unlawfully present.” As stated, unlawful presence occurs when the alien remains in the US beyond the validity date on her I-94 while being out of status occurs when the H-1B visa worker fails to adhere to the conditions of her status. Hence, it is critical that the alien makes the decision as to whether depart the US when she is out of status or unlawfully present carefully with an experienced immigration lawyer as mistakes at this stage maybe extremely costly.Example
An H-1B visa holder had an I-797 approval notice for Company “A” which expires on April 12, 2010 and she was laid off on September 1, 2009. If this H-1B visa holder was unable to transfer her H-1B visa by the date of this blog entry, then she will currently be deemed “out of status.” Remaining in the US beyond April 12, 2010 will cause this person to become unlawfully present. If she remains unlawfully present after October 12, 2010 AND departs the US afterward, she will be barred from receiving future immigration benefits for 3 years. If, on the other hand, she remains in the US after April 12, 2011 AND departs the US afterwards, she would then be barred from receiving future immigration benefits for a period of 10 years. But if she departs the US prior to April 12, 2010, she would not be subject to any bars and may conceivably return to the US immediately. You can now begin to see how serious unlawful presence can be.Solutions
If an H-1B visa holder is deemed to have become out of status for any reason, she could not get back into status unless one of the following solutions are applied:1) File an H-1B Visa Petition “Nunc pro Tunc”
If the H-1B visa holder finds an employer who is willing to file a petition requesting that her status be reinstated retroactively, within the sound discretion of the USCIS, then she could be able to get back into status without leaving the US. The petitioner and the H-1B visa holder will have to submit evidence showing that her visa violation was unintentional and “technical” in nature; that the circumstances of her going out of status were out her control; that she has not otherwise violated her status; and that she remains a bona fide nonimmigrant. The longer the out of status period, the less likely that the nunc pro tunc petition will be approved.2) Consular Process an H-1B Visa Stamp Upon the Filing of an H-1B Visa Petition With a New Employer
In the example recited above, suppose this H-1B visa holder is finally able to find an employer who is willing to sponsor her on February 14, 2010, a nice Valentine’s Day present. At this point, the H-1B visa holder is out of status but she had not accrued any unlawful presence (see above).
a. Not an H-1B cap Case: Note that this H-1B visa petition is not subject to the cap because the alien held an H-1B status or visa within the previous six (6) years.
b. H-1B visa Porting Unavailable: this person would not be able to join the new employer upon the filing of the H-1B visa, hence she would be unable to take advantage of the H-1B visa portability provisions of AC21, because the second requirement: that the H-1B visa petition was not filed prior to the expiration of her status.
However, once the H-1B visa petition filed by the new employer is approved, the alien could obtain a new H-1B visa stamp on her passport and return to the US.3) H-1B Visa Portability at the “Port of Entry”
In the scenario discussed above, let’s assume that our friend the H-1B visa alien who has become out of status, in fact possessed an unexpired Visa stamp on her passport that is good until the validity date of her I-94. If we further assume that she finds an employer who is willing to file an H-1B visa petition on Valentine’s Day. Provided that this alien did not work without authorization since she was laid off, she could in fact take advantage of the portability provision of AC21 by exiting the US and re-entering again on her H-1B visa stamp even though that visa stamp was issued for a prior employer. This is what we term “H-1B visa portability at the port of entry.”
The Law Firm of Shihab & Associates, Co., LPA has been successful in implementing all of the above enumerated solutions. If you have recently been laid off and are out of status, contact the Law Firm of Shihab & Associates, Co., LPA office near you or call their toll free number: (800) 625-3404.