In this video attorney Jacob Sapochnick discusses how Google layoffs are impacting foreign workers in the United States going through the employment-based green card process known as PERM. Layoffs in Silicon Valley have been more and more common, with major tech companies like Amazon, Facebook, and Twitter abruptly ending thousands of jobs, leaving workers scrambling for alternatives.
Specifically, what happens when a foreign worker is going through the employment-based green card process with their U.S. employer and subsequently gets laid off?
In this video we discuss the different scenarios that may apply and go over the different options for laid off workers going through the green card process.
If you want to know more just keep on watching.
Did you know? PERM Labor Certification is the process used for obtaining Labor Certification and is the first step for certain foreign nationals in obtaining an employment-based immigrant visa (Green Card). The employment-based preference categories that require PERM Labor Certification are EB-2 (other than a National Interest Waiver) and EB-3. Before a U.S. employer can file the I-140 Immigrant Petition for Alien Worker with USCIS, the employer must first obtain an approved Labor Certification from the Department of Labor (DOL).
What are the immigration options for those whose employment has been terminated?
Unfortunately, the uncertain economic climate has led to the loss of thousands of jobs, negatively impacting foreign workers. In particular H-1B workers have been some of the most affected.
Below we discuss some of the options that may be available to nonimmigrant workers who have been terminated and wish to remain in the United States following their termination. Additionally, we discuss how some workers can preserve their I-140 petition’s priority date or even their green card process depending on the stage of employment termination.
60-Day Grace Period
Immigration regulations allow for a 60-calendar day grace period for workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents) to be considered as having maintained status following the termination of their employment.
During the 60-day grace period, workers may be able to maintain their nonimmigrant status if a new employer timely files a petition on their behalf with an extension of stay request (example an H-1B change of employer petition for a worker in H-1B status).
Additionally, workers may be able to remain in the United States in a period of authorized stay if they timely file an application to change to a new nonimmigrant status (such as B-2 visitor nonimmigrant status) or an application for adjustment of status, if eligible.
Workers who are unable to timely file a change of status application, or find a new employer who timely files a change of employer petition on their behalf, may be required to depart the United States at the end of this grace period.
Layoffs during the Employment-based Green Card Process
- Scenario (1): Employee A is starting the green card process with his employer which consists of going through the PERM labor certification process and obtaining a prevailing wage determination.
If you are terminated at any stage of the PERM labor certification process, you will no longer be able to proceed with your filing. Workers who change to a new employer will have to start the PERM process from scratch. This is because you cannot transfer an existing PERM process from one employer to another.
- Scenario (2): Employee B successfully completes the PERM labor certification process with their employer and receives the prevailing wage determination. The employer is ready to file Form I-140 Immigrant Petition for Alien Worker under the third preference employment-based green card category. While the I-140 petition is pending for 3 months, Employee B is laid off.
Note: even if Employee B’s I-140 petition was approved and subsequently laid off, the employer retains the right to withdraw or request to revoke the I-140 petition, if the withdrawal is made less than 180 days from the date of approval of the I-140.
If Employee B changes to a new employer, they will need to start the green card process from scratch with the new employer. The only thing Employee B can retain is the priority date of the previously approved I-140 petition.
- Scenario (3): Employee C is sponsored by his employer and successfully receives approval of the I-140 petition. The I-140 petition has already been approved for at least 180 days.
In this case, the employer cannot revoke the approved I-140 petition and the worker will retain the priority date from the I-140.
- Scenario (4): Employee D is sponsored by his employer and successfully completes the PERM labor certification process. Thereafter, the employer files and receives approval of the I-140 petition. At least 180 days have passed from the approval of the I-140. Thereafter, Employee D is terminated by his employer and the employer revokes the I-140 petition.
In this scenario, USCIS will not revoke the I-140 petition and the worker will retain the priority date from the I-140.
Now let’s imagine Employee D is in H-1B status in the United States. In this case, Employee D can also use the I-140 approval to continue to extend their H-1B status in 3-year increments even if they change to a new employer. Those who are approaching the end of their H-1B duration of stay (6 years cumulative maximum duration) will be able to use the I-140 approval to continue to extend their H-1B while looking for a new employer. That is because the law allows an H-1B worker to extend their H-1B status if they are the beneficiary of an approved immigrant worker petition (I-140) and cannot yet file a green card application because his or her “priority date” is not current.
If Employee D is married and has an H-4 dependent spouse, the H-4 spouse can apply for their Employment Authorization Document (EAD) based on the approved I-140 petition.
PRO TIP: If you are an H-1B worker that has been laid off, make sure that you track how much time has passed from the filing of your I-140 petition to your employment termination to determine if you can use your I-140 petition to obtain H-1B extensions and retain your priority date.
- Scenario (5): Employee E is sponsored by his employer and the PERM process is successfully completed. Thereafter the employer files the I-140 petition and I-485 adjustment of status application concurrently (at the same time) because Employee E’s priority date is current. While the I-485 and the I-140 is pending for over 180 days, Employee E is terminated.
In this scenario, is the I-140 petition going to be approved considering your termination?
Based on USCIS guidelines, if the I-140 petition was approvable when filed, it should still be reviewed and potentially approved, even in the case of employment termination, because the employee qualified for the benefit and the petitions were pending for over 180 days.
As a rule of thumb, if you have an I-140 petition that has been approved and your I-485 adjustment of status application has been pending for over 180 days, you can port to a new company, as long as your new position is similar to the one that was filed in your PERM labor certification. In this way, you can preserve your green card under the portability rule.
In summary, there are many nuances that apply to the employment-based green card process. Depending on the stage of your employment termination in relation to the processing of your I-140 petition, you may or may not be able to retain your priority date and continue your adjustment of status process.
For this reason, it is of paramount importance for you to consult with an experienced immigration attorney who can help you navigate the process and determine if you can still preserve your green card despite your termination.
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