Help a Friend Stay in the USA

June 11, 2007 7:44 PM

H1B-filter: If someone is employed on an H1B visa and the company goes under and / or he gets "laid off", how much time would he have to get a new visa by just transferring it to the new company before having to apply for a new visa?

Assumptions: California. India. Master's Degree. Computer programming.

And no, it's not *me*!

posted by GatorDavid to Work & Money (7 answers total)

Technically, you are not entitled to any time.
In practise, a 10 day grace period is normal.
In reality, a company is under no obligation to inform the government that someone's employment status with them has changed, and it seems that they generally don't - the last thing they're interested in is unnecessary paperwork. As such, the only thing that immigrations would normally find out about the situation is that a petition has arrived from a new company wishing to transfer the H1b, in which case things should work out fine.

That the company goes under may make that riskier though - this is presumably going to be reflected in the company taxes, etc, and it's conceivable that there is enough data-sharing between government departments that they can put two and two together. I think that's probably unlikely, but you don't bet someone's livelyhood on the hunch of Some Guy on the internet :)

So basically,
- 10 days if you want to play it safe.
- Until the visa runs out is riskier, but I'm under the impression it's not uncommon behaviour.

But in this post 9/11 USA, I would advise not getting arresting or coming under similar scrutiney if the later option is taken! :)
posted by -harlequin- at 8:45 PM on June 11, 2007

Another way to put it, my understanding is that the grace period is entirely at the discretion of the government.
posted by -harlequin- at 8:54 PM on June 11, 2007

Also, I was assuming that they would be job-hunting locally. The grace period is (in my understanding) for job hunting while in the country and packing your things in preparation to leave the country. Well presumably really the later, but people use it for the former :)

But if you're out of the country, then everything is a-ok, and (assuming the government is not informed of the change of employment status) then the visa can be transferred up until it expires.
I'm not sure if the visa would be cancelled if the government was updated, but I suspect you would still be able to transfer it up until expiry.
posted by -harlequin- at 9:11 PM on June 11, 2007

H1Bs are not tied to the sponsoring company - they can be transferred as long as the employee is still employed by the sponsoring company at the time of transfer i.e. you can't if you got fired first.

Seconding -harlequin- in that for the government to know that your status has changed, someone has to inform the government. Considering most companies don't know diddely about immigration law - and why would they when they have an immigration lawyer deal with people coming in - who's going to know to do that? That said of course, if you were to abuse this then you're probably looking at repercussions in the long term, should a green card be sought for example.

And talking of green cards, I believe the grace period is longer - 30 days - if you have a green card application in process.

I have an excellent (and Indian!) immigration lawyer in LA if your friend/ colleague needs a hook up in CA - email in profile.
posted by forallmankind at 9:26 PM on June 11, 2007

Ignore all advice altogether except this: Help your friend find a good immigration lawyer. This was true two years ago. With all the hate and congressional chaos over immigration since then, it's many times more true now.

These are scary times for noncitizens in the United States. No anecdotes. Help your friend find a good lawyer.
posted by gum at 11:14 PM on June 11, 2007

Overstaying a US visa can result in stiff repercussions (like a 10 year ban) once the authorities discover it. The absurdly unyielding way this principle gets applied is reason enough to rely on nothing except a good immigration lawyer.
posted by nakedcodemonkey at 12:34 AM on June 12, 2007

When you are on H-1B, you have to leave the country when your job ends. Your friend should find a new job before the company goes tits up. That's the only way I know of to keep the H-1B. If your friend wants to try any other shenanigans, he needs a good lawyer.
posted by crazycanuck at 6:27 AM on June 12, 2007