What happens to my H-1B visa if my company goes out of business?

Dear Atty. Gurfinkel:

I have an H-1B visa through my company, which is valid until May 2007. Unfortunately, because of downsizing and reorganization, my company has advised me that they will be terminating my employment in three months. Because my visa is valid until May 2007, would I continue to be "in status" up until 2007, even if my company goes out of business or terminates my employment?

Sincerely,

M.C.

Dear M.C.:

An H-1B visa is a non-immigrant working visa, available to college graduates who are petitioned by U.S. employers who have job openings related to the person’s college degree (i.e. a person with a Bachelor’s Degree in Accounting could be petitioned as an Accountant by a U.S. employer). An H-1B visa is typically valid for an initial period of three years, and may be extended up to a total of six years. Not only is the alien worker entitled to an H-1B visa, but the alien’s spouse and children under 21 years old would also be entitled to H-4 visas, allowing the spouse and children to accompany the worker to the U.S. during the period of employment.

In your situation, according to USCIS, once an H-1B non-immigrant alien’s services for the petitioning U.S. employer are terminated, the alien is no longer in a valid non-immigrant status, even if the alien’s H-1B visa is valid for a period beyond the termination date. Therefore, once your employer terminates your services, you would no longer be in valid, non-immigrant H-1B status, regardless that the visa itself may be valid beyond the termination date. Per USCIS regulations, in such a situation, the H-1B visa holder would be faced with several different options: departing the U.S.; having a new employer petition them for an H-1B visa; or seeking a change of immigration status for which they may be eligible (i.e. possibly visitor or student, if they later intend to go back to the Philippines, etc.). However, the H-1B visa is not "transferable" (i.e. you cannot use the H-1B visa with your present employer to work for a different employer. The second employer must petition you for a new H-1B visa). However, you would need to act fast, to make sure you do not go "out of status" and become "TNT", and, therefore, subject to deportation/removal, and/or losing the potential ability to later adjust status in the U.S. (be interviewed for green card in the US).

H-1B visa holders can aim for a more "permanent" solution, and avoid the above situation by applying for a green card through Labor Certification (or PERM). Labor Certification is the process by which an alien can obtain a green card through an employer’s petition. Not only would the alien get a green card, but also the alien’s spouse and minor children. Unlike an H-1B visa (which is temporary and valid only for up to six years, or until such time that your employment is terminated), Labor Certification results in a green card. With a green card, you won’t have to worry about your employer eventually going out of business, selling his business, or cutbacks or layoffs, or your H-1B visa expiring!

The basic requirements for Labor Certification are similar to those for H-1B:

1. The alien will work in a job related to their education or experience. Labor Certification is available not only to college graduates, but also to "skilled workers", meaning they work at a type of job that requires at least two years of training or experience to perform, or unskilled workers like caregivers.

2. There is an employer in the U.S. who has a future job position, related to the alien’s education or experience, and is willing to pay the "prevailing wage".

There are several additional requirements, steps, and procedures in connection with the above items. That is why it is important that if you have any questions, or want to take action on your immigration situation, to achieve a "permanent" solution, you should seek the advice, guidance, and assistance of a reputable attorney so that you can, hopefully, achieve your "American Dream".

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