In precarious economy, both the employers and employees feel the pressure to reduce expense and increase profit. Such pressure is even higher in foreign worker situations because the foreign workers’ immigration status depends on the specific employment. Typical situations that arise in a recession include reduction of work hours, reduction of salary, benching, and finally layoffs.

Reduction of Hours/Salary

First of all, when a reduction of hours and/or salary becomes a significant enough change in terms of employment, it has to be properly amended and reported. Especially in the situation of H-1Bs, because the employment is defined closely by location, salary, and hours, a particular attention has to be given to ensure the H-1B employees do not fall out of status and the company does not violate the DOL regulations. Then, what changes are considered so significant as to require an amendment? If the full-time worker’s hours are reduced below full-time (35+ hours a week) or the rate of the guaranteed salary goes below the prevailing wage rate, the employer must file an amendment to correctly reflect the situation. Also, if the employer relocates the worker to another county, this also requires an amendment. An amendment is almost same as a brand new H-1B filing because a new LCA and all the immigration forms and letter of support must be resubmitted and approved. However, if the employer does not request extension of the H-1B stay at the time of amendment, no training fee is required. In some situations, however, the employer might wish to extend the stay while filing for an amendment so that it does not have to file an extension for another three years. In that case, the training fee has to be paid.

Sometimes, we have met employers and employees who did not file an amendment, under the wrong impression that part-time is not allowed under H-1B, and let the H-1B status slide out of status. It is most unfortunate that such basic questions are not asked or advised. Part-time employment is certainly allowed under H-1B and the petition has to be filed or amended accordingly.

Benching or Lay-offs

Whether the foreign worker’s employment is put on hold, unpaid, or an official notice to lay-off has been given, both situations are considered termination of employment. Even if the visa or I-94 period is still valid, the foreign worker will be considered out of status from the time of termination of employment.

At this point, the foreign worker needs to make a quick decision whether to secure another employment or leave the U.S. Technically speaking, if the gap between two employment if more than few weeks, the INS can approve the petition but refuse to change status in the U.S. because the foreigner no longer has a status to change from. In such an event, the foreign beneficiary must leave the U.S. and apply for a new visa at the U.S. consulate and return in the new status. This should not worry the visa applicants too much. As long as the gap was not unreasonable and/or no unlawful presence has accumulated, the Consulates have so far overlooked the minor gap and approved visa applications.

Change of Employment While I-485 Pending

What if the foreign worker is in the middle of adjusting one’s status when changes occurred to the employment? Nowadays, the I-485 adjustment applications are taking well over one year, during which time, many things can happen to the employment. As many are aware, the new law under AC 21 has permitted change of employment in cases of lengthy adjustment as long as the new job is in the same or similar occupational classification as the job that was the basis of his or her employment-based I-140 and the I-485 has been pending 180 days or more, the new employer may be substituted into the existing I-485 application without disrupting the application at all.

However, there is no law that protects an applicant whose employment has been terminated and who has not secured another similar job. The bad news is the longer the adjustment of status takes, the more likely RFE’s will be issued and interviews scheduled.

It is extremely important for this reason to document that the applicant worked for the petitioner for more than 180 days after filing the I-485 and he/she is now working at a similar job.

Although there are not perfect solutions to many unfortunate situations in the recession economy, I hope the above provides some guideline as to how to deal with changes of employment.