Foreign nationals have most to lose from a layoff. It’s tough all over. Tougher for some than others.

Foreign nationals, for instance, caught in the crosshairs of a layoff face not only losing their jobs but their legal status &mash; and possibly their adopted homes. ”Once they are laid off, they are here unlawfully. They have to depart the United States,” said Ira Kurzban, a Miami immigration attorney with Kurzban Kurzban Weinger & Tetzeli.

These workers are categorized as non-immigrants because they are in the United States for a specific activity or purpose, such as work, study or travel. For many non-immigrant workers, their immigration status is tied to their jobs. Those with H-1B visas received them in lottery. Foreign workers must have a college degree or an equivalent license to qualify for an H-1B visa. They tend to be doctors, teachers, accountants and stockbrokers &mash; some of the professions hardest hit by the financial crisis.

Though some of these workers never intend to stay permanently in the United States, others have made a life here. Their children are in school, and they consider America their new home. H-1B visas can be renewed after three years, and many who intend to stay will apply for a green card while being sponsored by their employer.

But that’s hard to do without a job. Hector A. Chichoni, an immigration attorney with Epstein Becker & Green in Miami, said a layoff can be horrendous for a nonimmigrant worker aiming to become a permanent resident. ”It can be a difficult situation,” he said. “It could mean the end of a green card.”

This is why Memphis, Tenn., immigration attorney Greg Siskind of Siskind Susser wrote a primer to alert non-immigrants being downsized that they face much more serious consequences than their American counterparts.

Employers conducting a round of layoffs often overlook the repercussions, and Siskind said he has spent a lot of time in recent weeks informing businesses of the nuances of immigration law in a downturn.

“I don’t think a lot of employers think about it,” he said. “Most employers feel bad, though. They don’t want to put somebody deliberately in a position where they become an illegal alien.”

Foreign nationals who are laid off need to act quickly because falling out of legal status, even for a short time, could affect their quest for citizenship, Siskind said. For instance, if they become an illegal alien, they might have to return to their home country to complete their green card application.

And there is no grace period. ”If they are terminated, shown the door immediately, they have become illegal,” Siskind said.

The best thing to do is contact an immigration attorney immediately, he said. One solution is to change to a visitor visa that will allow the worker to remain legally in the United States while searching for employment.

It’s a bit of a ruse. If the application is made to U.S. Citizenship and Immigration Services while the worker is still employed, the non-immigrant can stay in the country while the request is pending & mdash; a good period of time to find employment.

The difficulty comes three months later. ”The problem here is that those [visitor visas] are not easily granted,” Chichoni said. ”Sometimes you have to truly demonstrate intent to be a tourist and not to work. But if they think you are using the visa as a sort of way to buy time, they might not be so

inclined.” Employers are obliged to notify immigration authorities when they lay off immigrants so

visas can be pulled. Employers also must pay for an H-1B worker’s trip home. Businesses in the know sometimes keep these workers on the payroll for a short period of time so they can apply for a visitor visa.

That’s what happened to one of Siskind’s clients, who asked that his name not be published. The Beijing native came to the United States as a student 12 years ago and earned two degrees from Columbia University, an Ivy League school in New York. He got a job as a quantitative analyst at a small hedge fund in New York but was laid off last month when the bottom fell out of the investment business.

“I’ve never even been back to China since I’ve come here,” he said. “It’s going to be difficult if I have to go back.” In the meantime, he is thinking of leaving the investment industry to work for a credit

card company to “weather the storm.” The hedge fund company kept him on the payroll until the end of October, allowing him to apply for a visitor visa, and he feels confident he can find a new job in three months. Siskind said finding work for laid off non-immigrants all depends on their job skills and

the market. Two clients who came to him last month were physicians who were fired because the health care industry is suffering as patients cut back their medical care. ”This is not the first time we have gone through this. This is the third recession since I’ve been practicing,” he said. Kurzban said many non-immigrant professionals aren’t on track to become citizens.

Often, he said companies don’t want these workers becoming citizens and going to work for the competition. And in this economic climate, there may be better opportunities elsewhere. ”Particularly in the high-tech field, things have changed. There are a lot of jobs in India and Pakistan,” he said. “Many of them feel they will be better off going back home.”

For more information on this or any other topics contact the offices of David Peña at 305.373.5550 or info@myvisausa.com. 

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