Today I want to talk again about employment-based immigration, specifically H-1B visas. In today's uncertain job environment many individuals call me to want to know what to do in the event one is laid off or terminated. They ask, "Is there a grace period? How long do I have? What if my employer tells me I might be rehired? What are my options?

For many reasons, the BCIS has not been clear and simply addresses the general issue by saying each situation will be looked at on a 'case by case' basis under the circumstances presented to them. They don't want to say it, but there is no statutory or regulatory basis for a 'grace period'. At the same time, BCIS is not interested in forcing people abroad when there is a likelihood the individual will soon find new H-1B employment. This is truly a rare instance in the law where there seems to be an accommodation to common sense and practicality over strict compliance and enforcement. Yet, it is exactly because of these uncertainties that it is paramount one seeks and utilizes the services of a qualified professional, who, after consultation, can offer true options and strategies.

When clients seek my advice, I must first determine if the individual wants to stay in the U.S. or return to their home country. Is there a family? Are children involved and are they attending school? What are the real prospects of finding new employment? When was the last paycheck? Because of 'portability' (easily going from one H-1B employment to another) under AC21, a new employer will want to know how quickly one can work. The answer is 'on filing'; yet not properly structuring a new H-1B case can have severe consequences for the individual and/or the family later on when he/she seeks a greencard.

In addition, a poorly put together filing can result in BCIS requesting further documentation, including questions about one's previous stay or status. It should be noted too that a qualified and experienced immigration lawyer can often help with what I call the 'employer hurdle', talking to a prospective employer both about the H-1B process itself and later on, the greencard process. Oftentimes, employers have a 'bad taste' from either prior bad history with the BCIS , or bad experience with 'immigration consultants or paralegals' and often even an inexperienced immigration attorney or law firm. Finally, let's talk about the gap, i.e., "What happens if a new employer cannot be quickly found after a layoff?" The answer is that we must advise the client to quickly change their immigration status, but that, too, must be carefully mapped out and the case must include legitimate reasons that are real and not fabricated and are 'protective' later on when and if the individual will return to H-1B status. Again, one must seek professional guidance so as not to create a poor 'record' with BCIS through misstatements or intentional and material fabrications that can often come back to haunt the client if later he/she seeks to immigrate to the U.S.