Oscar Pena, Author at Graham Adair, Inc.

How Layoffs Can Affect Workers with Temporary Work Visas

While Graham Adair immigration attorneys frequently work with employers looking to bring foreign-born workers to San Jose, Austin, and Lehi, we also work with companies based throughout the United States, Europe, and Asia. Unfortunately, the economic slowdown we have been experiencing in the U.S. is happening in many major countries around the world, which has resulted in an increase in layoffs affecting employees across the spectrum, including foreign nationals. These days, we are seeing more of those clients due to Q4 2022 layoffs.

Certain industries – primarily big tech – have been hit unusually hard by layoffs over the last two quarters. This is especially troubling for those of us who practice immigration law for the simple fact that tech companies make significant use of foreign labor. When times are good, they regularly utilize L-1 and H-1B visas to help foreign nationals move here to work.

When times are not so good, foreign national employees are impacted by layoffs along with the general workforce. Those affected by layoffs often do not understand their options. If they fail to act quickly, they could face the prospect of having to depart the U.S.

H-1B Employer Responsibilities

The rules regulating H-1B visas force employers to take some responsibility for laid-off workers who now need to leave the country. For example, employers who voluntarily terminate employment must pay to get foreign workers back home. But paying for airfare doesn’t cover the cost of shipping possessions, paying for other family members, and other related expenses.

Affected workers can be stuck with a significant financial burden as a result of being laid off. Making matters worse are layoffs that happen suddenly and without warning. Informing workers that layoffs are coming in just a few short weeks doesn’t give them much time to come up with contingency plans.

Having little time to prepare can be especially difficult for workers here on L-1 visas. The L-1 visa is governed by separate rules. For starters, a visa holder’s employer bears no responsibility for getting them back home. As such, the entire cost of travel and shipping falls on the worker.

What Laid-Off Workers Can Do

U.S. immigration law does not leave laid-off workers without options. The options are few and time constraints are looming, but laid-off workers can immediately start taking actions to keep themselves in this country. One of the first things we recommend they do is start looking for new jobs with employers willing to sponsor them.

Finding a new employer can keep the worker in the country. There is paperwork involved in order to transfer sponsorship from one employer to another, as well as some compliance issues to iron out. But with the help of an experienced immigration attorney, that delicate process can be navigated successfully.

For workers in L-1 status, it is unlikely they would be able to transfer their L-1 visa to another employer. If finding another job is not possible, laid-off workers could consider the H-1B visa or a self-employment option. There are a number of additional visa options that may require the individual to adjust the primary purpose of their status, which is not always desired. However, these options would enable a foreign national worker to stay in the U.S. while figuring out a more suitable arrangement.

An increasing number of people have been looking at starting their own business venture. The advantage to a foreign national of starting their own business is that the company can be their sponsor going forward. Of course, there is the challenge of launching a viable startup and nurturing it to become a profitable venture.

Seek Expert Legal Advice

As a foreign national, finding yourself in the position of being laid off can be scary, at minimum. It can mean the end of a dream to live and work in the U.S. long enough to get a green card and eventually apply for citizenship. But do not assume that being laid off means it’s all over. There are often several options available.

We would recommend seeking out expert legal advice from an attorney that specializes in immigration law. An immigration attorney is the most capable person to advise on the best course of action. Above all, don’t give up hope. There are ways to lessen the blow and continue pursuing career aspirations.

Department of State News & Updates USCIS

Is Your Company Revamping Immigration?

The State Department previously announced that the pandemic-induced lull in legal immigration to the U.S. is over. During the 12 months that ended on September 30, some 493,000 visas were issued to foreign nationals looking to work and live in this country permanently.

Where does your company stand in all of this? With heavy-handed COVID restrictions mostly removed, which weighs against a flat economy, is your company now revamping its business immigration policies? If so, it is going to be a complicated space for the foreseeable future. For these reasons, it would be wise to work with an experienced business immigration attorney or law firm that can help keep things moving along.

Consulates Are Open, People Are Traveling

Fiscal year 2019 saw an impressive number of visas issued by the State Department. Then COVID hit and the world shut down. Consulates were closed up and travel restrictions put in place. That put a huge damper on legal immigration. But now that consulates are open and people are traveling again, the numbers are back up.

The previously mentioned 493,000 visas represent a 73% increase from 2021 and 7% over 2020. Either way you look at it, legal immigration is working to get back on track. This is good in the sense that companies once again have access to foreign nationals looking to the United States for work. Companies can access that foreign talent pool much easier now that travel restrictions have eased.

The one thing that does not change is how visas are actually processed. There is still paperwork to complete; there are still deadlines to pay attention to; there are still T’s to be crossed and I’s to be dotted.

Many Ways to Get Workers Here

There are quite a number of different ways to get workers to the U.S. We deal a lot with the H-1B visa here at Graham Adair. These are mainly visas for temporary employment. But there are other options, including business visas, work visas, training visas, and exchange visitor visas.

Working with an experienced immigration attorney offers the advantage of being able to select the most appropriate visa program without having to possess the knowledge yourself. Tell us what your company’s needs are, and we can advise you as to the most appropriate way to sponsor people with the right skills and experience. Then we can work with you to facilitate the process from start to finish.

Transitioning from Temporary Visa to Green Card

We can also assist foreign national workers with the transition from a temporary visa status to green card, or permanent residency. A green card gives a foreign national permanent residency status. After a certain amount of time, a person with a valid green card can apply for U.S. citizenship. Once again, we can help.

At every step of the way, the paperwork needs to be completed the right way. Making mistakes delays the process and can even result in denials or other impacts to an individual’s immigration status. And given how strict the State Department is with some types of visas, delays can easily disrupt a company’s need to onboard a foreign national employee. It can even jeopardize a worker’s chances of being approved.

Graham Adair immigration attorneys are paperwork experts. Our attorneys know how to complete government forms in such a way as to give the State Department and U.S. Citizenship and Immigration Services exactly what it’s looking for. We make sure all required information is submitted so that processing is swift. We also ensure that our clients fully understand compliance and enforcement issues.

It is encouraging to know that immigration has opened back up now that the largest impacts of COVID have been pulled back. However, considering the struggling economy, many companies are taking a step back to re-evaluate their immigration policies. We can help by way of expert legal advice and assistance for you and your foreign workers.

Immigration and Customs Enforcement News & Updates

Business Immigration: Has America Outgrown Its Talent Pool?

As a law firm with a team of highly experienced immigration attorneys specializing in business immigration, we are fully aware of the need for so many industries across the country to bring in new talent from wherever they can find it. In some industries, like the tech industry, the best companies in the business would not be nearly as successful without immigrants.

A recent post published on the Harvard Business School (HBS) website discusses pretty much the same topic but floats the following suggestion: America has outgrown its talent pool. It is an interesting supposition in light of annual immigration statistics and what we know about the current labor rate.

Not Enough Job Candidates

In a tight labor market, there simply aren’t enough qualified candidates for all the open jobs. According to HBS contributor James Heskett, there are approximately 4 million unfilled jobs in the U.S. at this time. Meanwhile, the unemployment rate in October 2022 was 3.7%.

No doubt unemployment has been worse at times. It was much worse at the height of the COVID pandemic. So 3.7% is nothing to get worked up about. But here’s the thing: the 3.7% of U.S. workers who are employable but can’t get a job find themselves in the unenviable position of wanting to work but not having the skills or experience to land one of the available positions.

The numbers alone suggest that Heskett’s point of the U.S. outgrowing its talent pool is at least plausible. And that being the case, where should a company short on talent go to fill out its payroll? Business immigration.

Immigration Is a Mess

Heskett also points out in his piece that current U.S. immigration policy is a mess. He suggests there are times when it’s hard to know what the policy actually is. Southern border issues aside, any one of our immigration attorneys can testify to how difficult it is to get immigrants to this country so they can actually start working.

Whether a worker needs an H-1B visa or something else entirely, there is a ton of paperwork that needs to be done. There are deadlines to be met. There are hoops to jump through and no guarantee that a visa will be issued.

It can be frustrating because it sometimes seems like the deck is stacked against foreign-born workers committed to coming to this country only after following every rule in the book.

Businesses Need Immigration

A central theme of Heskett’s piece is that American businesses need immigration. He likened the current situation to circumstances that existed right around the turn of the 20th century. Industrializing America was in desperate need of workers, yet our own population could not supply the demand. Thank goodness for waves of immigrants who came here and brought their skills and willingness to work with them.

It is hard to deny that U.S. immigration policy is in need of reform. It’s hard to deny that there are plenty of people who enter the country illegally. It is even hard to argue against the fact that immigration has become a political hot button. But from a business owner’s standpoint, foreign-born workers represent a section of the labor pool that is not being tapped to its fullest potential.

Has America outgrown its talent pool? It looks like we could be heading that direction. If we are to keep our economy strong enough to be able to compete with the rest of the world, we need to have people to fill all those vacant positions. Finding a way to reform business immigration may be the best solution.

News & Updates

USCIS Decisions Can Take a While – What to Do in the Interim

The wheels of immigration can move pretty slowly here in the United States. Part of the problem is that our immigration law is more complicated than it needs to be. And of course, bureaucracy can reduce the speed of even the fastest process to a crawl. So what is one to do while waiting for the U.S. Citizenship and Immigration Services (USCIS) to render a decision?

Immigrants and non-immigrants awaiting USCIS decisions have options. However, there are things to consider:

An immigrant’s or non-immigrant’s current legal status;
The type of visa being applied for;
Whether or not there are sponsors involved; and
The amount of time the individual has already been waiting.

There is no black-and-white answer to the question. However, we would say that retaining the services of an immigration law firm should be the first step for any immigrant or potential employer who hasn’t already done so. The reason for this is there is industry knowhow that adds a lot of value to people seeking immigration benefits, particularly considering the complexity of U.S. immigration.

Wait Patiently for a Decision

As long as everything is in order and you’ve only been waiting a short amount of time, the most reasonable option is to sit tight and wait patiently for a decision. Nearly every type of immigration application filed with the USCIS is under time constraints. This is not to say that the law requires the USCIS to adjudicate each case within a certain amount of time. However, USCIS does publish current case processing times. If a case processing time goes beyond the published processing time, action can be taken in the form of a service request.

If the government has 180 days to reach a decision in your case and it has only been 90 days, you have a way to go. There is not much else you can do but be patient and wait.

Work on Other Arrangements

It is not uncommon for a business immigration attorney to tell clients to start working on other arrangements while waiting for a USCIS decision. For example, an immigrant worker will need a place to stay. There may be other arrangements that have to be made with the individual’s employer. The time spent waiting on USCIS might just as well be put to use working on those arrangements. However, we highly recommend consulting an immigration attorney to ensure stable U.S. status. If a case is pending and the outcome affects the applicant’s ability to remain in the United States, then it would be prudent to wait for the decision before taking other binding action, such as signing a long-term lease.

Be Thinking About Long-term Immigration Goals, Such As Citizenship

We, as immigration attorneys, see lots of instances in which non-immigrants who plan to only live and work in the U.S. for a limited time change their minds and decide they want to stay longer. They typically want to at least become lawful permanent residents (green card), and in many cases decide to go all the way and become citizens. If there is any chance that you might want U.S. citizenship, it is never too early to make that a clear part of the plan.

Look into what it takes to become a citizen. Learn about the paperwork. Do some research into the immigration exam and then start studying. If you are planning to become a citizen and you don’t start working on it, your timeline can get pushed back significantly because there are many timing issues that come with applying for citizenship.

Consider Legal Action

The other side of the adjudication coin is having legal recourse when the USCIS doesn’t reach a decision in a timely manner. Let’s go back to the example of 180 days. If you’ve reached day 181 and still haven’t heard from the USCIS, you and your attorney can file a service request. But if the processing time goes way beyond 180 days, you may decide you wish to push harder to get your case pushed through. The first step toward legal action is often contacting a local congressperson’s office. Many congressional offices have government liaisons who can help get a case pushed through faster. This is particularly true if you have the support of your company.

There are some cases in which the USCIS has not yet reached its time limit for making a decision, yet still appears to be slow-walking an application with the intent to sit on it for as long as they can. Outreach to a congressional might be a viable option in such a scenario.

Unfortunately, U.S. immigration often moves at the speed of molasses. Between bureaucracy, short staffing problems, and no shortage of potential immigrants, decisions take a long time. It’s just the way things are. But there are actions you can take with your attorney to improve the processing time of your case if it drifts past standard processing times.

News & Updates

4 Categories for Employment-Based Permanent Residency

U.S. immigration law allows American employers to bring foreign-born workers to the United States by way of temporary work visas. In many cases, permanent residency is the logical finish line of an individual’s immigration process. Obtaining permanent residency based on employment allows foreign-born workers to continue living and working in the U.S. indefinitely.

Due to language in U.S. immigration law, the government does not issue an unlimited number of permanent resident visas. The visas are limited to a certain number annually. Furthermore, not all foreign-born workers seeking permanent residence are afforded equal opportunity to do so.

Workers are divided into four preference categories based on the work they do and the skills they possess. The categories are designated as EB1, EB2, EB3, and EB4.

EB1 – Priority Workers

The first category comprises what are known as ‘priority workers’. This particular category is eligible for almost 29% of the annual allotment of permanent residency visas. Workers in this category are divided into a number of subcategories:

Workers with extraordinary ability in their respective fields. They are typically involved in business, education, arts, sciences, or athletics.

Professors and researchers are considered outstanding in their fields. These workers must have a minimum of three years’ experience and be internationally recognized for their work.

Executives and managers with at least one year of verifiable employment (within the last three years) with an overseas affiliate of the American employer. Such workers must be coming to the U.S. to work in an executive or managerial position.

All workers in the first preference category must be the direct beneficiaries of their respective I-140 forms.

EB2 – Workers and Shortage Occupations

The second preference category involves workers employed in jobs considered shortage occupations by the DOL’s Labor Market Information Pilot Program. There are two subcategories within this group:

Advanced degree professionals with at least five years of professional experience.

Workers with exceptional abilities – defined as being significantly above the norm in their respective fields – in the arts, sciences, or business.

In order to qualify under the EB2 preference category, a legitimate job offer must be in place and the American employer must have filed a petition on behalf of the worker.

EB3 – Skilled and Degreed Workers

Continuing down the list, the third category of preference goes to skilled workers and professionals with a bachelor’s degree, at minimum. All workers in this category must be employed in jobs considered shortage occupations by the DOL. They must also have an approved Form I-140 filed on behalf by their employers.

EB4 – Special Immigrants

The fourth and final preference category includes a broad range of workers who qualify for permanent residency based on a special category. Examples include physicians, religious workers and former United States government employees.

Trickle-Down Visa Opportunities

As experts in immigration law, we can tell you that there are far more applicants each year than there are available visas. The best immigration attorneys can do is provide advice and assistance in making sure documents are filled out correctly. Ultimately, though, a lottery system decides who gets the visas.

On a positive note, the permanent resident approval system works on a trickle-down principle. If all available first preference visas are not issued in a given year, the unused visas are passed on to second preference workers. Likewise for second preference visas. Any left unused after the annual lottery are passed on to the third preference category.

If all of this sounds complicated, it is because it is. Furthermore, it illustrates why the services of an experienced business immigration attorney are invaluable.

Please contact us with any questions at info@grahamadair.com; (408) 715-7067.

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