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• OPT and Students

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“I’m on H-1B and have just been terminated from my job.  What do I do?”

 

Losing a job is a turning point for anyone.  For the H-1B holder, however, the consequences are severe and immediate.  As soon as you are informed of your termination there are steps you must take to secure your benefits and, perhaps, your future H-1B employment.  As an H-1B employee your status in the United States is tied to your employment.  The day you are terminated you are not considered to be maintaining lawful status in the U.S. What this means must make arrangements to change employers immediately or depart the United States.

 

You must file a change of employer petition as soon as possible.

 

When terminated from your employment you are not maintaining lawful status in the U.S.  Therefore, if you wish to remain in the United States, you must immediately file a change of employer petition. The change of employer petition requires you to show that you are maintaining lawful status in the U.S.  This is usually done through the submission of your three most-recent pay slips, your W-2 and even your income tax filings.  In cases where you were terminated several months before filing the change of status, the pay slips become a very real problem and proof of maintenance of status is very difficult to provide.  In these cases, USCIS may deny the change of employer petition.  In some cases, USCIS may approve the underlying H-1B if the petition was not frivolous but you will be required to depart the U.S. and return to your home country for Consular stamping of a new H-1B. 

 

Reminder:  Do not begin working for your new employer until you confirm that your H-1B change of employer petition has reached USCIS.  The safest way to confirm this is to wait for the receipt notice issued by the USCIS Service Center.

 

Your employer must pay for your transportation home.

 

If you wish to depart the United States, your employer must pay for the reasonable cost of your return transportation home.  If your employer fails to do this or refuses to provide you with transportation home, you have the right to sue the employer for the cost of the transportation.  In addition, the court may determine that your employment was not effectively terminated and you may be able to also collect the equivalent of your pay from the date of termination onward.  In short, your employer must notify USCIS of the termination AND pay for your transportation home in order to effectively terminate the employment. 

 

 Returning home does not necessarily subject you again to the H-1B Cap.

 

It is important to note that departing the United States does not necessarily mean that you will again be subject to the dreaded H-1B Cap.  In some circumstances, you may seek readmission as an H-1B and use the remainder of your six years of maximum H-1B validity to avoid the numerical cap.  This means that you can apply for a new H-1B even after you depart the United States without waiting for the April 1^st filing date.  For example, you could return to your home country after spending four years in the U.S. on H-1B, remain there for a year and return to the U.S. for another two years to use your six-year maximum authorized H-1B validity.  You also have the option, after residing abroad for one full year, to apply for a fresh six-year H-1B under the H-1B cap.

 

There are alternatives to termination.

 

Finally, if you have a good relationship with your employer, but tough economic times are forcing them to terminate employees, consider applying for and negotiating a period of unpaid leave.  You will need to put your request in writing and request a written response from your employer.  This unpaid leave period will provide you with the time needed to seek new employment and to have the new employer prepare your H-1B petition.  In addition, the written correspondence between you and your employer may serve as the evidence needed to show that you have maintained status in the United States if such evidence is requested by USCIS.

 

The economic downturn in the United States is having devastating effects on families and corporations.  However, with a clearly defined strategy and some advanced planning, an employment termination does not have to end your career in the U.S.  The most important thing to remember is to seek the right advice, plan ahead and make the right choices.

Question:  I am a citizen of China on F-1 and am graduating on February 1, 2009 with a Bachelor’s degree in Economics.  I will begin OPT on March 2, 2009 through March 1, 2010.  I have been applying for jobs but have not yet been able to find an employer who will sponsor my H-1B. If I am unable to find a job with a company who will sponsor my H-1B what will happen when my OPT expires in 2010.

First, the new OPT rules state that you must not be unemployed for an aggregate period of 90 days while on your 12 month post-completion OPT.  Therefore, you will need to secure employment with your OPT by June 1, 2009.  Also, your school will require you to report your employer name, address and contact information so that they may add this information into SEVIS. 

Second, you need to secure employment with a company willing to sponsor you for H-1B by April 1st, 2009 (preferably sooner).  Your OPT will expire on March 2, 2010 and, at that time, you will not be eligible for an OPT extension beyond the 12 months.  Unfortunately, you are not eligible for the two OPT extensions meant to help students deal with the H-1B Cap. 

The two types of OPT extensions available are:

1.  H-1B “Cap Gap” provisions automatically extend status and work authorization (OPT) until October 1st when you are the beneficiary of a timely filed Change of Status petition from F-1 to H-1B.  This is to ensure that there is no “gap” between F-1 expiration and the October 1st start date of the H-1B.  For example, if you graduate in May, 2008 and your OPT is valid from June 1, 2008 through May 31, 2009 AND you file an H-1B petition requesting that your status be changed from F-1 student to H-1B AND you are accepted under the H-1B Cap, your OPT and F-1 status will automatically be extended until Oct 1, 2009 so that you may remain in the U.S. and work while your H-1B is pending. 

2.  For STEM (Science, Technology, Engineering, Mathematics) degree holders are eligible for an additional 17 months of OPT (29 month total) if the degree is in one of the designated programs listed at http://www.ice.gov/sevis/stemlist.htm. 

If you do not qualify under one of the two categories above, extension of your OPT beyond the 12 months is not possible and you’ll need to look for other alternatives to remain in the U.S. beyond March 2, 2010. 

 

This Blog is written and managed by Stephanie Scarborough, Esq., Partner at Serotte Law Firm.  http://www.serottelaw.com/  To contact Stephanie, please email her at sscarborough@serottelaw.com.

I hope you enjoy the blog content.  Please leave your own immigration story.

Disclaimer:  The information provided on this site is not legal advice. For legal advice, please contact a qualified immigration attorney.  All information provided on this site is for informational purposes only. Stephanie Scarborough,  http://www.myimmigrationstories.com/ and http://www.serottelaw.com/ makes no representations as to accuracy, completeness, currentness, suitability, or validity of any information on this site and will not be liable for any errors, omissions, or delays in this information or any losses, injuries, or damages arising from its display or use.