Jose and Girlie, married couple from Manila, gave up their promising careers to work for a US company. Two years ago, they arrived in the US on H1B visas and were offered to be petitioned for green cards if they continue to work for this company. Recently, their employer notified them that they are being terminated and that no green card petition shall be filed on their behalf. Jose sought legal advice on whether finding a new US employer will help him maintain his H1B status and stay in the US. He wants to know his options.
In the beginning of this week, there was a bloody Monday where more than 62,000 US workers were reportedly terminated from their job in just one day. The worse can me expected in the coming days.
Foreign Workers in the US
Generally, immigrant workers occupy mostly highly skilled occupations in the field of medicine, engineering, the physical sciences, health care, computers and mathematics. There are also unskilled workers who are foreign born in the field of construction, building and maintenance and agriculture.
We see Filipino workers in the various different fields mentioned but most especially in health care. Many are US residents with green cards but there are a number of them who are working with temporary working visas.
All sectors of the society had been affected by the US crisis.
Those recently granted immigrant visas are now joining the significant number of terminated employees who are looking for occupations. Unemployment in the US rose to 7.2 percent and dropped 2.59 million jobs since the recession in December 2007.
The green card holders who are new immigrants may find it difficult to search for jobs when most industries are reducing labor costs and terminating employees.
However, their predicament is not as worse as two other categories of foreign workers. These are the workers who have pending applications for adjustment of status based on the petitions by their US workers and those who are in the US on temporary working visas.
Employment Based Petitions
Green card may be obtained either through family or employment petition. In family petitions, as long as the petitioner is a US citizen or lawful permanent resident with the financial ability to executive an Affidavit of Support for the beneficiary, the financial crisis does not affect them that much.
For those who are being petitioned by US employers, there is a distinct scenario. If the US employer who initially filed a petition for green card for a foreign worker terminates the petitioned employee, serious consequences will occur. The petitioned employee needs to find a new employer under the same terms and conditions as s/he was petitioned in order to remain in lawful status. And this has to occur six months after the petition and adjustment is filed in order that they will qualify under the portability provisions of the American Competitiveness Act of the 21st Century. Otherwise, if the application is pending for last then six months and the US employer decides to terminate employment, the petitioned employee shall fall out of status.
Temporary Working Visas
Filipino workers who are holders of H1B or temporary working visas will lose their status if they are terminated. The H1B visa is by nature an employer specific type of visa. There is no immediate transfer of visa petition and that a new visa petition must be filed if the H1B visa holder is terminated.
During these difficult times for employers, the H1B visa holders are usually given only a few days notice before they actually terminated. This means that they are not afforded sufficient time to find new employment to maintain their lawful nonimmigrant status.
Hard Choices
Both employment based immigrant and nonimmigrant working visa holders are definitely going to lose status if they do not find substitute employment. No work, no visa. There is an economic downturn now even if we force ourselves to become optimistic. With everyday news of economic disaster, the immigrant workers are left with hard choices.
There are H1B visa holders who will take their employer?s offer to buy a one way ticket back to the Philippines to avoid being branded as ?TNT? and move on with their life in the homeland.
Many of those we encounter have decided to take the road to uncertainty and wait for the legalization or immigration reform to be adopted by the Obama administration. Each individual decides based on their specific circumstances. Sometimes the choice made is the only choice left for the Filipino worker. Unless, there are genuine government programs open for returning overseas Filipino workers they will be compelled to look for other options if not in the US then in different countries. As resilient as they may get, they are likewise ready to ?buckle down and work harder?.
(Tancinco may be reached at law@tancinco.com or at 887 7177)
