Immigration During Economic Downturns: Q&A

By Laura Edgerton, Esq.*

Many economists say that a recession is either already here or is on its way.  With an economic downturn looming, can lay-offs be far behind? 

Lay-offs are obviously troubling for everyone, but for people working in the U.S. on a temporary work visa or in the process of seeking permanent residence, they can be even more worrisome.  With this in mind, we thought it helpful to address some of the questions that frequently arise during economic downturns:

Q:  If I am laid off, I have heard that I have a ten-day grace period to leave the U.S. without violating my status.  Is this true?

A:  No, there is no grace period, regardless of the status that you hold.  A 10-day grace period exists only for H-1B visa holders who have fully completed their period of stay in the U.S. with the employer who sponsored them.  In all other situations, a lay-off normally terminates the employer-employee relationship and the visa status that goes with it.  Laid off employees should make plans to change status or depart the U.S. as soon as possible, so that their future ability to obtain a work visa or U.S. permanent residence is not adversely affected.

Q:  My employer has filed a PERM application for me, but it has not been approved.  If I am laid off, what happens?

A:  Normally, a PERM application is valid just for a specific employer and a specific job opportunity with that employer.  If you are laid off, you will normally need to start the permanent residence process over with another employer.

Q:  My employer is interested in filing a PERM application for me, but has recently laid off a number of my colleagues.  Does this impact my PERM application?

A:  It could.  If there has been a layoff within 6 months of filing a PERM application in the same or "related occupation" as yours, the employer must notify and consider all potentially qualified laid off U.S. workers and document the results.  Laid off colleagues who performed a similar position to yours may well be qualified for your position, too.  If they can perform your job with a reasonable period of on-the-job training, a PERM application for you will normally not be successful.

Q:  I have an approved PERM and filed an I-140 and adjustment of status application last summer.  My I-140 and adjustment are still pending.  My employer is now going out of business and I am losing my job.  What happens to my green card case?

A:  You may be okay.  If it has been more than 180 days since you filed your I-485 application, you can find a job in the same or similar occupation and your I-140 petition was initially approvable when filed, you should be able to "port" your pending case to a new employer.  However, prior consultation with an attorney is strongly advised in this case. 

Lay-offs can cause a lot of stress, but you may still have immigration options.  It is strongly recommended that you contact an immigration attorney to discuss your situation if you sense a lay-off is imminent.

*Laura Edgerton is a Partner at Bashyam Spiro & Edgerton, LLP, an immigration and nationality law firm in Raleigh, NC.  The firm's website and Laura's biography are available at www.bashyamspiro.com .

This information is our analysis of current law and is not intended to be quoted as original source information from any US government agency. Nothing in this article should be taken as legal advice or legal opinions for any individual case or situation. The information is offered for general informational and educational purposes only and should not be relied upon for any specific situation. No attorney-client relationship exists with any individual reading or reviewing this article unless a contract has been agreed upon by all parties to any attorney-client relationship.