An H-1B worker has been laid off or terminated. His H-1B petition has not been revoked. The worker may additionally request a trade of status to every other nonimmigrant category while he seeks employment. If the worker locates appropriate employment, the brand new company puts up an H-1B petition to the INS and requests an exchange of employers. The amount of time that an H-1B worker can also stay inside the U.S. After being laid off or terminated is not defined in the regulation or the rules. Various INS officials over the years have opined the H-1B employee ought to post software for an alternate of employers within 30 days or 60 days. However, these statements are merely evaluations and do now not have the pressure of law.
The wise employee will attain a proposal for employment and have the brand new organization submit a utility to exchange H-1B employers as soon as possible. Under AC-21, the H-1B cap regulation enacted all through October 2000; the employee might begin employment with the brand new organization as quickly as the H-1B switch petition is submitted to the INS. Either it will be approved, or if the INS comes to decide that an excessive amount of time has elapsed since the worker changed into laid off or terminated.
The INS will approve the H-1B petition and deny the utility to trade employers in the U.S. In the latter case, as soon as a Notice of Approval is issued, the worker might also depart the U.S. And follow for a brand new H-1B visa overseas. If his vintage H-1B visa has not expired, he may be capable of in reality journey outside the U.S. And go back to the use of his unique H-1B visa and his original Notice of Approval (Form I-797) of his newly-authorized H-1B petition.
If an H-1B employee is laid off or terminated and cannot quickly achieve an expert provider of employment, another alternative is to publish a utility to alternate popularity to a B-1 commercial enterprise traveler or a B-2 traveler even as he appears for work. Then, when he unearths a job, the brand new corporation can also practice to the INS to alternate his status back to H-1B.
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Finally, what happens if the laid-off employee is already the beneficiary of an authorized employment-primarily based visa petition? In this example, the employee should have his new organization put up an RIR labor certification and an EB visa petition on his behalf. He could be able to use his unique priority date.
If the laid-off employee is working the usage of an EAD, he can also start operating for a brand new corporation. Losing one’s process does not invalidate an EAD. Only the denial of the software for adjustment of fame does this. But, again, the employee ought to have his new company put up an RIR labor certification and a visa petition on his behalf as quickly as viable.
