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It’s Layoff Season for Tech Industry Workers

Its Layoff Season for Tech Industry Workers
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What options do terminated H1B employees have?

In prior years, there was usually a lot of excitement building up towards the period when the US Citizenship & Immigration Service (USCIS) opens the period for accepting H1B petitions. But this year is different. 

Beginning last quarter of 2022 up to the present, giant tech employers have been announcing mass layoffs of thousands of their employees citing economic uncertainty and fear of a coming recession. While there are no exact figures of how many are holders of H1B visas among those who were terminated, we are receiving a lot of inquiries by terminated H1B holders on what options they have to continue staying in the United States.

Generally, an H1B visa holder must leave the U.S. before the end of 60 days from date of termination. But if the worker is not ready to depart,  what are the available options to allow them to continue to stay in the United States?

  1. Find a new U.S. employer. A terminated H1B visa holder may apply for a new job with a different employer.  This new employer must be filed before the 60 days expire. 
  1. Negotiate with the Current Employer. Being laid off comes as a surprise to many and usually it is a sudden news that is received by a terminated employee, i.e. no advance notice. But if a Notice of Termination is already received, depending on the company policy, one may negotiate for an extended termination date until the H1B employee finds a new employer in exchange for a lower severance pay. This is just an option as many H1B visa holders find that maintaining status is more a priority than the amount of severance pay.
  1. Change Status. If the deadline to leave the country is fast approaching and  the negotiation for extended termination date is not granted, consider filing for a change of status for either a visitor visa (B2) or a student visa (F1). Or, the H1B visa may also be changed to an O1 visa which will also permit the individual to work. The standards for O1 are different from an H1B, thus requiring an advice/analysis from a legal counsel. This application for change of status must be filed within the 60 day grace period.
  1. Adjust Status. This situation is specific to those who have a U.S. citizen fiancé or are already in a relationship. They may want to consider marriage and have their spouses petition them. A simultaneous petition and adjustment of status may be filed.
  1. Consider forming a Start Up Entity. An investor visa (temporary or permanent) may be an option for a terminated H1B visa holder who has the capacity to invest in a new U.S. entity and meets the eligibility requirements set by pertinent regulations.

Realizing that thousands of talented foreign nationals are affected by these mass layoffs, there are venture capitalists and or other smaller firms, who may be sympathetic and willing to hire these H1B employees.

When all options have been exhausted and there is no such luck, or perhaps, there is not enough time to change status or find a new employer within the 60 days period, it may be best to consider leaving the United States in order to preserve one’s option of returning in the future without any negative consequence. 

(Atty. Lourdes S. Tancinco is an immigration attorney and immigrant rights advocate based in the San Francisco Bay area and a partner at the Tancinco Law P.C.. She may be reached at law@tancinco.com, www.tancinco.com, facebook/tancincolaw, or at 1-888-930-0808)

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Global Pinoy

Immigration: Entrepreneur parole program at risk of being axed

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The U.S. Department of Homeland Security released its official rule on July 11, 2017 seeking to delay the implementation of the International Entrepreneur Rule or the entrepreneur’s parole program. With the publication of this rule, the effective date of implementation is moved from July 17, 2017 to March 14, 2018.

Entrepreneur Parole Program

At the beginning of this year, the DHS published the International Entrepreneur Final Rule (aka the entrepreneur parole program) with an effectivity date of July 17, 2017. Many startup companies have been looking forward to the implementation of this program as it will attract talented foreign entrepreneurs who are well positioned to advance U.S. businesses.

Most of those who stand to benefit from this program are foreign entrepreneurs who can prove that their knowledge, skills or experience would substantially assist a U.S. entity in conducting and growing its business in the United States.

Parole Authority

The current immigration law allows the DHS to exercise its parole authority under section 212(d)(5) of the Immigration and Nationality Act if the presence of the paroled non-U.S. citizen would provide a significant public benefit to the United States.

Under the entrepreneur parole program, eligible applicants may be granted a stay of up to 30 months, with the possibility to extend it for a period of up to 30 additional months. Those targeted to receive parole are entrepreneurs who shall work with the start up businesses.

Delaying Its Implementation

The rule that was just recently released reveals that the DHS decided to delay the effective date of the entrepreneur parole program to further consider it in light of the Executive Order on Border Security and Immigration Enforcement Improvements (EO13767).

Under this executive order, the DHS Secretary is mandated to take appropriate action to ensure that the parole authority is exercised on a case-to-case basis in accordance with the plain language of the law and that it so demonstrates urgent humanitarian reasons or significant public benefit. It is in this light that the DHS delayed its implementation in order to re-examine the program based on EO 13767.

The rule on entrepreneurs parole program was first published on August 31, 2016 by the DHS and the final rule was published on January 17, 2017. The policy was not finalized without considering comments from the public about the benefit it will bring if implemented.

Approximately 3,000 entrepreneurs were expected to apply for this program. Most of those who are planning to apply are in the tech industry as well as those who are planning to develop new business ventures that will spur economic growth and job creation.

It is sad that the present administration’s perspective is just the opposite. While other nations are inviting foreign entrepreneurs, the United States will be turning them away by delaying implementation of the program (and possibly terminating it altogether).

Many billion-dollar startup companies including Google, Uber and SpaceX were founded by immigrant entrepreneurs. They now hire thousands of U.S. citizens. Obviously, strengthening startup companies, job creation and innovation are a significant public benefit and this entrepreneur parole program should not have been stalled.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and immigrant’s right advocate. She may be reached at law@tancinco.com, facebook.com/tancincolaw, or 1 888 930 0808)