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The U.S. Economic Recession and an Alien’s Immigration Strategy Jian Joe Zhou, Attorney at Law The continued U.S. financial crisis has caused many people to worry about the effects of the economic recession on daily life. More attention is being focused on job security and the possibility of layoffs across many industries. Thinking long term, economic pressures tend to raise anti-immigration sentiments, thereby increasing political pressures to slow down or altogether end employment based immigration. Economic fears are likely to have an immediate impact as well by increasing layoffs and decreasing job availability. These possibilities are important concerns for alien workers who may lose legal status or immigration benefits as a result of job loss. Consequently, foreign workers should remain sensitive to their individual industries and take steps to prepare and protect themselves from any negative consequences which may result from the recent financial worries. For those aliens with concerns about job security, we offer the following analyses and strategies. How to Maintain Non-Immigrant Status as an H-1B Worker Aliens in H-1B or other non-immigrant statuses dependent on employer sponsorship may want to consider other non-immigrant options, especially if they are concerned about their job. If an alien’s spouse holds an independent status such as F-1 or H-1B, the alien worker may change to a derivative status such as F-2 or H-4. However, while this will protect the alien’s status in the U.S., once the alien changes status, he or she will not be able to work. Those in non-immigrant status may also return to school and change to F-1 student status. F-1 status requires that an alien pursue a full course of study in an approved college, university, conservatory, other academic institution, or language training program in the U.S. In order to apply for F-1 status, the individual must already be accepted for admission at an approved institution and receive an I-20 form from the school. While it may be difficult to gain quick admission to larger universities and colleges, aliens can opt to enroll in qualified community colleges or language programs. Aliens who are about to lose H-1B employment and opt for this strategy should file a change of status request with the USCIS as soon as possible. How to Maintain Non-Immigrant Status when Approaching Graduation The economic recession could also affect those still in school and about to graduate. Many foreign students try to enter the U.S. workforce directly from college, using H-1Bs. However, with a reduction in job offers, they may need to explore other paths. One option is to remain in school and pursue a higher degree. Of course, this option depends on securing admission to a graduate degree program. Another possibility for those in OPT with a qualified STEM (science, technology, engineering, mathematics) degree is to apply for an OPT extension. This extension allows qualified students to continue their OPT up to an additional 17 months, for a total of up to 29 months of practical training. This is a good option for qualified students whose employers have job offers, but are unwilling to sponsor H-1B petitions. It also gives soon-to-be graduates more time to find an H-1B position. Employment-Based Immigration Applicants An employer-sponsored immigration petition, such as an EB-2 or EB-3 through PERM, or an EB-1(b) (Outstanding researcher or professor), requires a bona fide offer for a full time position. Thus, if the company goes bankrupt or can no longer offer the original position before the immigration petition (I-140) is approved, the petition will be denied. However, if the alien’s I-140 immigrant petition has already been approved and their I-485 adjustment of status application has been pending for more than 180 days, he or she may seek employment in a same or similar occupation with another employer. This will not jeopardize the I-485 application which was based on the previous employer’s I-140 immigration petition. . Though not dependent on employer sponsorship, individuals in the NIW or EB-1A self-petition categories can still be impacted by a shrinking job market. The NIW and EB-1A categories do not require employer sponsorship, but the petitioner must prove that he or she will continue to work in his or her field of expertise to advance contributions to the U.S. Without employment, the USCIS may conclude that the alien petitioner does not intend to or will not be able to contribute to the U.S. We have seen cases where the USCIS approves an NIW/EB-1A based I-485 when the alien does not have a full-time employment, but continues to work either part-time (without any full time commitment to any other field) or in a volunteer position in his or her field of expertise. However, the USCIS looks more favorably on permanent positions. While industrial high paid jobs can be difficult to secure, post-doctoral or research positions with universities or colleges may meet the necessary criteria for NIW/EB-1A based immigration petitions. Is it Worth Starting Now? Despite the current situation, it is still advantageous for aliens to begin the immigration process if they qualify for an EB-1A or NIW or receive sponsorship for an EB-1B or PERM based EB-2 and EB-3. Once an alien’s form I-1-140 immigrant petition has been approved, he or she can carry over the priority date established by I-140 filing (or PERM filing if it is PERM based). This secures a place in the visa number line. In the event that the alien’s employer can no longer offer him or her a qualifying position after the immigrant petition is approved but before the I-485 is filed, the alien can carry over the original priority date to any future EB-1, EB-2, or EB-3 petitions It is important to understand that, despite growing attention on U.S. financial markets, the American GDP is still relatively strong when compared to other nations. While the current financial and job situation in the U.S. is definitely something for alien workers to consider, it should not be a deterrent for those hoping to realize their American dream. *Attorney Jian Joe Zhou is the Co-managing attorney at Zhang & Associates, PC (www.hooyou.com). Joe has more than 8 years of experience in employment/business immigration and international law practice. Joe received his SJD, LLM, and MLI degrees from the University of Wisconsin Law School, and his LLB from East China University of Politics & Law. He may be reached at jzhou@hooyou.com. ------ (09/23/2008) For more immigration news, please click here |
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