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IMMIGRATION DECEMBER 02, 2022 | The Indian Eye 38

Layoffs Will Hurt Nonimmigrant Workers

the Most, Especially Indian Born,

but the Biden Administration Can Provide Relief

BY CYRUS D. MEHTA and KAIT- low nonimmigrant workers who to find new employment in the The USCIS also gives of- aid laid off nonimmigrant work-
LYN BOX* have been laid off to remain in U.S. The 60-day grace period is ficers discretion to determine ers is the expeditious issuance of
the U.S, and even if they are not a relatively new concept, having whether nonproductive status employment authorization doc-
n recent weeks, news of lay- terminated, they should not be been introduced in a final rule constitutes a violation of the uments (EADs) that would al-
offs at the likes of Twitter, required to cling on to their job that went into effect on January beneficiary’s nonimmigrant low nonimmigrants to continue
IMeta, and Amazon have at all costs. 17, 2017. Before this rule was classification. The following working in the United States for
contributed to broader fears First, the Biden adminis- enacted, nonimmigrant workers extract from the USCIS Policy a new employer. Under 8 CFR
that the United States is enter- tration could extend the 60-day did not benefit from any grace Memo is worth noting: § 204.5(p), an EAD may be is-
ing a recession. In last week’s grace period to allow nonimmi- period, and had to immediately In assessing whether a ben- sued to individuals in E-3, H-1B,
blog, we provided suggestions grant workers additional time to leave the U.S. if their employ- eficiary’s non-productive status H-1B1, O-1 or L-1 nonimmi-
for how terminated workers can find alternate employment after ment was terminated to avoid constitutes a violation of the grant status if they can demon-
maintain their nonimmigrant being impacted by a layoff. As being considered in violation beneficiary’s H-1B nonimmi- strate compelling circumstances
status and potentially even discussed in prior blogs, 8 CFR of their nonimmigrant status. grant classification, the officer and are the beneficiaries of ap-
pursue permanent residency. § 214.1(l)(2) allows E-1, E-2, Because the 60-day grace peri- must assess the circumstances proved I-140 petitions, but their
The layoffs at Twitter have also E-3, H-1B, H-1B1, L-1, O-1 or od was itself created by a rule, and time spent in non-pro- priority dates are not current.
shown that it was mainly work- TN nonimmigrant workers a the Biden administration could ductive status. While neither “Compelling circumstances”
ers whose H-1B visas were tied grace period of 60 days after a easily promulgate a new rule statutes nor regulations state have never been precisely de-
to Twitter that have stayed on cessation of their employment. extending the grace period to the maximum allowable time fined, but DHS suggested some
and abided by the unreason- Workers who are able to find 180 days, for example, or even of non-productive status, the examples of compelling circum-
able ultimatums of Elon Musk. new employment within 60 days longer. To avoid Administrative officer may exercise his or her stances in the preamble to the
This has given credence to the will be able to remain in the Procedure Act (APA) challeng- discretion to issue a NOID or a high skilled worker rule, which
notion that H-1B workers are U.S. and maintain their nonim- es, though, the administration NOIR to give the petitioner an include serious illness and dis-
akin to indentured laborers es- migrant status, but this period would likely have to follow the opportunity to respond, if the abilities, employer dispute or
pecially those who are caught may not allow sufficient time for strictures of the notice and com- time period of nonproductive retaliation, other substantial
in the never ending green card job hunting, especially if layoffs ment rulemaking process rather status is more than that required harm to the worker, and sig-
backlogs. We follow up on the and hiring freezes become more than bypassing them under the for a reasonable transition be- nificant disruptions to the em-
previous blog by providing widespread. By extending the good cause exception. Notice tween assignments. As always, ployer. DHS has suggested loss
some suggestions that the Biden 60-day grace period, the Biden and comment rulemaking takes if the officer encounters a novel of funding for grants that may
administration can follow to al- administration would allow time, however, and the relief of issue, the officer should elevate invalidate a cap-exempt H-1B
terminated workers more time an extended grace period might that issue to local service center status or a corporate restructure
not arrive quickly enough management or Service Center that render an L-1 visa status
for workers who have al- Operations, as appropriate. invalid are examples of scenar-
ready lost their jobs or are One should also note a ios that might constitute signifi-
laid off in the near future. 1999 advisory opinion concern- cant disruption to the employer.
The next suggestion ing reductions in force. US- Historically, USCIS has rarely
is to make clear when the CIS indicated that a severance issued EADs under compelling
60 day grace period starts. package that offered terminat- circumstances. Given the pre-
Many workers are placed ed H-1B and L-1 employees carious situation that nonimmi-
on severance or garden their normal compensation and grant workers who are impacted
leave. The 60 day grace benefits for a 60-day period did by layoffs will find themselves in,
period should start at the not preserve the beneficiaries’ the Biden administration could
end of the severance peri- nonimmigrant status. Specifi- instruct USCIS to employ this
od. However, a June 2020 cally, Branch Chief Simmons authority to generously grant
USCIS Policy Memo has wrote, “An H-1B nonimmigrant EADs to individuals who have
muddied the waters some- alien is admitted to the United lost their jobs. Nonimmigrant
what. In this memo, the States for the sole purpose of workers who are laid off will be
USCIS has indicated that providing services to his or her forced to uproot their lives on
“[t]he failure to work ac- United States employer. Once very short notice if they cannot
cording to the terms and H-1B nonimmigrant alien’s ser- find new employment within
conditions of the petition vices for the petitioning United 60 days. Many nonimmigrant
approval may support, States employer are terminated, workers have lived and been
among other enforcement the alien is no longer in a valid employed in the United States
actions, revocation of the nonimmigrant status. Howev- for many years. Some have U.S.
petition approval, a find- er, an H-1B worker who has citizen children and spouses
ing that the beneficiary not been terminated, but is on who have also built careers in
failed to maintain status, leave, can distinguish his or her the United States. Such individ-
m of or both.” Based on this situation from one who has in- uals will face serious hardship
CYRUS D. MEHTA & PARTNERS PLLC policy, it would seem that deed been terminated.” if they are forced to abandon
the grace period starts
Instead of all this muddled
their lives in the United States
when the H-1B worker is guidance and mixed messag- and return to the countries of

no longer in productive ing, the USCIS should provide which they are citizens, a dev-
status even though they straightforward clarification re- astating situation that should be

  may be paid their full sal- garding when H-1B status ends, interpreted to readily constitute
   
­ ary during the severance and clearly indicate that H-1B compelling circumstances.
€
‚   or nonproductive period. workers who are still maintain- The Biden administration
The USCIS should clar- ing an employer-employee rela- can also utilize a provision at
ify that an H-1B worker tionship after being given notice 8 CFR § 214.1(c)(4), which
to
ought to be considered in status
maintain
affords USCIS the discretion
continues
status so long as the em- until the relationship ends. to accept an untimely filing if
2 6th Floor ployer-employee relation- Another step that the Biden “the delay was due to extraor-

    ship has not terminated. administration can employ to dinary circumstances beyond
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