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Wednesday, December 7, 2022

How can I stay in the US if I’m fired? • londonbusinessblog.com

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Here’s another edition from “Dear Sophie,” the advice column that answers immigration-related questions about working at tech companies.

“Your questions are vital to the dissemination of knowledge that empowers people around the world to rise above limits and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in the People-Ops, a founder, or looking for a job in Silicon Valley, I’d love to answer your questions in my next column.”

londonbusinessblog.com+ members get access to weekly “Dear Sophie” columns; use promo code ALCORN to buy a one or two year subscription with 50% off.


Dear Sophie,

I got fired and I’m on an H-1B. I have enough savings to survive for a while. What should I do if I am fired from my job? I’m on an H-1B, have an approved I-140 and an I-797 expiring in March 2024. If I have to leave the US, can my current I-797 be transferred to my next employer? Are there any issues I should watch out for?

— Restless and unemployed

Dear Upended,

I’m sorry to hear that you were fired, and the stress this has undoubtedly added to your life! Your questions center on the thousands of others who have been fired from Twitter, Facebook, Stripe, Brex, Lyft, and other tech companies.

I realize this can be an incredibly stressful time. It is my personal life mission to help immigrants have peace of mind, including the opportunity to stay in the United States, keep their families safe, and fulfill their dreams of making the world a better place. I am so happy to have the opportunity to share my advice through this column!

The good news is that US Citizenship and Immigration Services (USCIS) allows a 60-day grace period to stay in the US if you lose your job while on vacation. E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1or TN Visa. And we can convert your 60-day grace period into a total of eight months of immigration job – it’s possible to extend your time in the US to more than 60 days by changing status from H-1B to another category, such as a visitor, to submit , student or dependent spouse.

When individuals in need of visa sponsorship are fired, we often hear that their top priority is to maintain their ability to remain in the United States beyond the 60-day grace period, especially if they own a home, have a spouse, or have children at home. have a burden at school. Often people ask me what to do if they can’t get a job that offers visa sponsorship within the 60 day cooling off period or how they can finally follow their heart to explore their own startup ideas.

Here are my recommendations for staying in the United States, as well as options and opportunities to keep in mind.

If you want to work for another company, start applying NOW!

Unfortunately, you cannot transfer your current I-797 to your next employer. However, you can transferring your H-1B to your new employer after the H-1B application process. If you are approved, you will receive a new I-797.

Put all your energy into finding another job. Have as many interviews as possible. Reach everyone in your network – friends, family, former colleagues, colleagues, neighbors and acquaintances. Take advantage of social media and attend networking events. Also take a look at where venture capital is flowing these days; companies that receive Series A funding or higher are likely to hire.

During an interview, be direct about your need to transfer your H-1B to a new employer. If the company doesn’t want to sponsor you, then move on. Ideally, you should not accept a job offer more than 45 days into your 60-day grace period unless you have applied for a different fallback status, as it can take several weeks to prepare and submit the H-1B transfer.

In addition, if you qualify for a O-1A visa for extraordinary abilitycould you consider using an agent to file an O-1A petition on your behalf, which would make your visa independent of any particular employer. This provides both of you with redundancy because you can change or add paid jobs in the United States without changing the petition every time, in general, as long as you continue to work in your field.

Start NOW to work for your own startup!

If you want to start your own tech venture, find someone you can work with to become your co-founder. Find out if you qualify for an O-1A ASAP or determine if you want to set up your startup to be compatible with an H-1B transfer. Talk to both an immigration attorney and a corporate attorney to come up with the best structure for your startup and determine an immigration strategy for your startup to sponsor you for a visa.

For many people, if they qualify, I recommend that your startup sponsors you for an O-1A, which offers more flexibility and freedom than an H-1B transfer. Many people with an H-1B visa in Silicon Valley and beyond are surprised when we tell them that they already qualify for an O-1A. The added benefit of the O-1A is that it serves as a stepping stone to eligibility for the EB-1A green card extraordinary ability, currently available.

Think of a backup plan

Have a backup plan and work with an immigration attorney to assess your options. You can transfer your H-1B, become an H-4 dependent visa holder if your spouse has an H-1B, or change your status to an O-1A visa.

Since you have an approved I-140 green card petition, there are several options to either keep your green card process and transfer it to another company or formulate it as your own petition so that you are no longer dependent on a particular company for your green card and permanent residence in the US

The good news is that you keep your green card priority date and it can be used for another EB-1, EB-2 or EB-3 I-140 petition! Your priority date is the date when:

  • a PERM application to the United States Department of Labor for a EB-2 advanced degree, an exceptional green card skill, or a EB-3 skilled worker green card was filed with USCIS.
  • or Form I-140 green card application has been filed with USCIS.

That means if you apply for a green card yourself or if your new employer agrees to sponsor you for a green card, you keep your place in the green card queue – and don’t have to go to the back of the queue. to go. If you were born in India or China and your I-140 application was for an EB-2, EB-2 NAV (National Interest Waiver), or EB-3 green card, ask your immigration attorney to assess your eligibility for an EB-1A green card, which is currently available regardless of country of birth.

Start collecting documents

While you wait for interviews and job openings, make sure you gather all the documents you need to provide to your new employer for your H-1B transfer. This includes:

  • A copy of your current visa and forms I-797 and I-94
  • Your resume
  • Payment slips from your previous employer
  • Letter of recommendation
  • University degree and transcript
  • Academic Evaluation

If you plan to pursue an O-1A, start by collecting letters of recommendation and proof that you meet at least three of the eight O-1A requirements, such as:

  • nationally or internationally recognized awards you have received;
  • proof that you are working in an essential capacity for an organization with an excellent reputation;
  • articles written about you or your company;
  • proof that you rated a hackathon or other competition;
  • proof that you have a high salary.

Have a look at this Dear Sophie column in which I discuss each O-1 criterion in more detail.

H-1B transfer once you find a job

Whether you work for yourself or for another company, make sure you keep an eye on your timing: A Form I-129 H-1B filing or O-1A filing must be filed with USCIS on or before the 60th day since you were discharged.

If you are working for a new company, ask your new employer to start the Employment Benefit Application (LCA) process as soon as possible. Filing an LCA with the U.S. Department of Labor for approval is the first step to transferring your H-1B. The labor department usually takes seven to 10 days to process an LCA. The approved LCA must be attached to the H-1B petition that your new employer will file with USCIS on your behalf.

Your new employer can request premium processing for an H-1B filing, meaning USCIS will file a request for evidence or make a decision on your case within 15 days. Premium processing is also available for O-1A applications.

You can start working for your new employer as soon as USCIS receives your H-1B or O-1A application and issues a Form I-797 receipt. As long as the I-129 for the H-1B or O-1A is filed on or before the 60th day of your grace period, you may remain in the US while you wait for USCIS to make a decision. That means your stay will extend beyond the 60 day grace period!

all my dear,

Sophie


Do you have a question for Sophie? Ask here. We reserve the right to edit your submission for clarity and/or space.

The information in “Dear Sophie” is general information and not legal advice. For more information on the limitations of ‘Dear Sophie’, please see our full disclaimer. “Dear Sophie” is a federally registered trademark. You can reach Sophie directly at: Alcorn Immigration Act.

Sophie’s podcast, Immigration law for tech startups, is available on all major platforms. If you want to be a guest, she accepts applications!


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