World Journal Weekly Q & A - September 14, 2008

Q & A 1.


Q&A 1.

H-1B Holder Just Fired - What Can I Do?

I went home for three weeks and came back two weeks ago. My boss just told me he was dismissing me because there was no work. My last paycheck will be tomorrow. I am on an H-1B visa, so what can I do? How much time do I have? What are my options? I just talked to a small company that said that they would be willing to sponsor me so that they could send me as a consultant to another company, but said that I would have to pay $2,500 for my H-1B transfer and a penalty of $15,000 if I left them before one year. Is this reasonable?

Dear reader:

Your choices appear to be going back to school to study, leaving the U.S., staying illegally, or finding a position with another organization that can sponsor you for a working nonimmigrant visa. Other possible types of non immigrant visas for work include O-1 if you are distinguished in the arts or extraordinary in the sciences, H-3 trainee if an organization wishes to train you and send you overseas at the end of the training, or E-1/E-2 if you are a manager or worker with specialized knowledge for an organization having the same nationality as yours so long as your country has a treaty of navigation and commerce with the U.S., etc. If you still wish H-1B status, you can try to find an organization which is willing to sponsor the transfer. Is it reasonable for the small company to ask you to pay $2,500 for the H-1B transfer? It may be reasonable if it covers attorneys fees. An organization is only obligated to pay the job training fee portion for H-1B processing. The $15,000 penalty, however, sounds exorbitant and probably not enforceable in a court of law. Insofar as timing is concerned, U.S.C.I.S. has recently signaled that it is willing to give more latitude for cases in which H-1B holders have been abruptly dismissed if they show that they are making a good-faith effort to find new employment. This means that, although H-1B holders are not given a grace period when their work terminates, U.S.C.I.S. will most likely grant transfers of status inside the United States so long as the period of time to find new employment is not overly long and they are able to show immediate good faith efforts to find a new position.

 

Copyright © 2003-2008 Alan Lee, Esq.
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