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April 12, 2012

“Houseguests are like fish, they start to stink up the place after three days.” This aphorism, commonly attributed to Benjamin Franklin, is often quoted as a universal benchmark of freshness.

Foreign professional workers in H-1B visa status have good reason to be concerned with the freshness of their last paystubs, when contemplating the end of the job that serves as the basis for their visa status, regardless of whether they quit or are terminated. In an era of economic uncertainty, where companies in any industry may suffer waves of layoffs, it is prudent for foreign workers to think ahead about what would happen if the H-1B job ended. The first question on their minds is usually, “How long do I have?”

Paystubs do not start to stink after a mere three days, but how long they remain fresh depends on the circumstances, and it is highly subjective. USCIS briefly embraced a “zero tolerance” policy on this issue, but then thought better of it… presumably based on existing provisions of law, and the realities of timing interactions between a worker, a prospective new employer, and the employer’s law firm. After all, the whole point of H-1B portability is to promote freer movement of labor.

There are multiple sources of possible administrative delay: the worker’s education and visa status documents are assembled by a hiring manager or human resources specialist at the prospective employer, then forwarded to counsel, then draft Labor Condition Application documents are prepared by counsel and sent to the employer, notices are posted by the employer and an LCA is filed with the Department of Labor, then H-1B petition documents are sent to the employer, reviewed & signed, returned to counsel and filed with USCIS. Given those required steps, especially in a corporate setting where any drafts provided by outside immigration counsel may also be reviewed by in-house counsel before they can be signed, the worker’s paystubs that were a day old when first supplied to the prospective employer could be several weeks to more than a month old by the time a new H-1B petition is filed.

One common misconception essential to dispel is the idea of a grace period: there isn’t one. The notion of a 10-day grace period for H1-Bs and other temporary workers is a stubborn myth that persists despite frequent debunking by attorneys, by USCIS and by legal service organizations. No grace period exists.

An H-1B professional worker is technically “out of status” as soon as the job ends – devaluing any post-termination paystubs marked “Severance.” However, such a worker remains in the more hazily-defined “Period of stay authorized by the Attorney General” so long as the expiration date on his or her I-94 entry/departure card has not been reached. Once that I-94 card expires, the worker has overstayed, and is not merely “out of status” but also “unlawfully present.”

Finding a new job – and a willing new H-1B visa sponsor – can be especially difficult to plan for when job termination is sudden, involuntary, and due to events utterly beyond the worker’s control, such as a layoff, or if the current employer goes out of business. Such events grow more frequent in an unstable economy, so an H-1B worker should be aware of the landscape.

A prudent H-1B worker may see the writing on the wall before their job or their employer’s business comes to an abrupt end, and may look proactively to transfer to another employer while they are still working for the approved H-1B employer. However, even workers proactively planning for change may face a concern beyond their control: what happens if the existing H-1B employer is merged into or acquired by another company, so their paystubs no longer reflect the name on their H-1B visa or approval notice? Failure to file timely amended petitions for affected H-1B workers is not the fault of the workers; it is either a non-material change, or a violation by the employing company.

Nonetheless, a petition seeking to take advantage of H-1B portability may face a challenge from USCIS and the worker could potentially be deemed out of status if all the worker can produce for the new employer is recent paystubs that do not match the company name on their most recent petition approval notice, unless they can also produce a published press release or news article detailing the merger or acquisition.

In sum, the timing concerns involved in making the leap to a new H-1B employer will always hinge on case-specific details that should be discussed with counsel at the earliest opportunity, but it does not have to be a mystery.

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