Fired H1-B

[TeamM&M 4]

Please, your urgent help is required.

My good Canadian friend with Japanese wife was employed in California as an "At-Will" employee.

He has unfortunately been let go effective 2 weeks from now.

As an H1-B employee (with dependent spouse) what is his best course of action in efficiently obtaining a new position in the USA.

His "former" employer said he needs to leave the US ASAP (like by the end of August).

I feel it's important that he maintains the ability to be hired in a manner that is exempt from the H1-B quota.

When must he really leave the US? The date on his I-94?

Should he apply for a change in status to visitor then back to H1B when he finds a job?

Should he leave the country then return?

Any initial guidance at this initial stage would help so much.

Does he just need to find a job and a company willing to fill out paperwork as a sponsor? If we are looking for a company in his field of speciality that already has an H1-B slot open, that seems tough.

The key is his escaping the quota as far as I can see.

Thank you so much for your thoughtful responses in advance.

Cheers,

Team M&M

Edited August 6, 2014 by TeamM&M

[canadian_wife 1,823]

Define "let go", was this friend fired or laid off - yes it matters.

Good luck

[jan22 3,056]

He falls out of status immediately upon being terminated -- whether fired or laid off.

[Darnell 8,478]

If he is Canadien Citizen, suggest you review/study TN-1 visa requirements.

[canadian_wife 1,823]

He falls out of status immediately upon being terminated -- whether fired or laid off.

True, but company lawyers will often continue to work with H1B holders if laid off, not the case for being fired

[TeamM&M 4]

Well he was given the option of immediate termination or signing a resignation letter. Under duress at that moment, he signed.

[Mollie09 1,543]

Please, your urgent help is required.

My good Canadian friend with Japanese wife was employed in California as an "At-Will" employee.

He has unfortunately been let go effective 2 weeks from now.

As an H1-B employee (with dependent spouse) what is his best course of action in efficiently obtaining a new position in the USA.

His "former" employer said he needs to leave the US ASAP (like by the end of August).

I feel it's important that he maintains the ability to be hired in a manner that is exempt from the H1-B quota.

When must he really leave the US? The date on his I-94?

Should he apply for a change in status to visitor then back to H1B when he finds a job?

Should he leave the country then return?

Any initial guidance at this initial stage would help so much.

Does he just need to find a job and a company willing to fill out paperwork as a sponsor? If we are looking for a company in his field of speciality that already has an H1-B slot open, that seems tough.

The key is his escaping the quota as far as I can see.

Thank you so much for your thoughtful responses in advance.

Cheers,

Team M&M

His "former" employer said he needs to leave the US ASAP (like by the end of August).

His employer is correct. His H1B status expires the moment he is terminated.

I feel it's important that he maintains the ability to be hired in a manner that is exempt from the H1-B quota.

He is exempt from the H1B quota as long as he is hired within the same category, independent of when.

When must he really leave the US? The date on his I-94?

Immediately upon his termination, there is no grace period for H1B employees.

Should he apply for a change in status to visitor then back to H1B when he finds a job?

He could, but his request to enter as a tourist might be denied if he fails to show sufficient ties to Canada. Considering he's been working and living in the US, he won't look like a tourist to USCIS. At least H1B is dual-intent.

Should he leave the country then return?

He should leave immediately, otherwise his options to return will be compromised. How he returns is a separate conversation.

Any initial guidance at this initial stage would help so much.

Does he just need to find a job and a company willing to fill out paperwork as a sponsor? If we are looking for a company in his field of speciality that already has an H1-B slot open, that seems tough.

If he can find someone willing to hire him RIGHT NOW, he is cap-exempt and can apply even though there are no H1B visa numbers available. Usually a minor gap (less than a month) will be forgiven, but not always. It not only seems tough, it's supposed to be tough.

The key is his escaping the quota as far as I can see.

No, the key is leaving before his overstay becomes an issue if he can't find another employer.

[Mollie09 1,543]

If he is Canadien Citizen, suggest you review/study TN-1 visa requirements.

Good advice, but keep in mind TN is non-immigrant while H1B is dual-intent. It might be a good route, but he'd have to prove no immigrant intent.

[umeranyth 0]

True, but company lawyers will often continue to work with H1B holders if laid off, not the case for being fired

Not essential to the case at hand. In my experience, the involvement of company lawyers are only limited to notifying USCIS of your termination. That's all. Edited August 7, 2014 by umeranyth

[TeamM&M 4]

Not eligible for TN unfortunately.

He and his wife are packing while quickly job searching ;-(

[umeranyth 0]

Not eligible for TN unfortunately.

He and his wife are packing while quickly job searching ;-(

What is his job, if you don't mind me asking?

He can (self-)petition for either an EB-1 and/or EB-2 NIW. In doing so, he can submit both I-140/I-485 concurrently (He's Canadian, so there are still EB-2 numbers available) before his H1B runs up (perhaps he can negotiate for an extra month off through some usage of PTO?). There are only 2 available categories to self-petition in: EB-1 and/or EB-2 NIW. As far as I know, you can file both concurrently.

There are tons of resources online regarding EB-1 and EB-2 NIW. HOWEVER definitely definitely definitely speak to an attorney to see if he has a strong case for either EB-1 or EB-2 NIW. The bulk of applicants in these two categories are scientists/researchers, but I have read and heard cases of artists/musicians/actors etc. being approved. It all depends on whether you can make a good case.

Also, since you can file for both I-140/I-485 concurrently (which means filing for an AP/EAD as well), your friend would have a lot more time to apply for jobs that would be willing to sponsor him an H1B. Since H1B is dual-intent, there should be no conflict between the I-485 and H1B should he find someone willing to sponsor him an H1B.

Again, speak to an attorney ASAP. This is my opinion and I'm no attorney but having been through this process myself (I received my I-551 through NIW) and having an excellent legal team, I definitely encourage him to speak to an attorney ASAP.

Best of luck and let us know how it goes!