With the advent of even more layoffs in the high-tech industry, persons from the former USSR must consider what options they have to stay in the U.S. There are alternatives to going home or becoming out of status. It is as important as ever for persons here on non-immigrant visas to maintain that status to avoid deportation and give them some chance of getting a green card in the future. But how to do that when you've been laid off and lost your H-1 sponsor.
One alternative is to apply for a change of status
to a tourist visa or business visa. This is a short
term solution that is preferable to becoming out of status.
This can be done by filing an application with the INS before
the lay-off occurs or before the expiration of the H-1 visa
. It is possible to request up to six months with each application.
Applications should be supported by documentation that supports
the need for the visa. The best evidence are doctor's letters
describing necessary treatment for the visitor or the need
for the visitor to take care of a sick relative, or invitations
to a wedding, or other event justifying a longer stay, or
documents identifying specific travel plans. The applicant
must show the INS proof of their own money in the bank to
support themselves or a relative who agrees to support them
while here. It is also helpful to show reasons why the applicant
intends to return to their home country, such as property,
employment or immediate family left behind there.
One may also try switching to a student (F-1)
visa, although this has become more and more difficult.
Again, it is better than the alternative of becoming out of
status.
Another alternative may be an L-1 visa.
This is a visa for executives or managers of international
companies. Persons only qualify for this visa if they are
sponsored by a company which is a subsidiary or parent company
of a firm overseas. There are very specific additional conditions
on this visa which make it a very limited alternative.
The best option in some cases will be to apply
for asylum. This immediately extends one's legal status
in the U.S. And, as long as a person has been in status during
their entire stay here, there is nothing to keep a person
from applying - even if he or she has been in the U.S. more
than five years. The one-year time limit on asylum claims
does not apply to persons in status. A person must file within
"a reasonable period of time" of losing their present visa
status. According to a conservative reading of this rule,
one should file for asylum within 90 days of losing their
H-1 or other status. Certainly it is unwise to wait longer
than 6 months. However, the INS will consider applications
even later if the applicant can show "extraordinary circumstances".
Therefore, for those recently laid off, it is important
to act promptly.
"Political asylum" is a status bestowed by the
INS upon individuals who can prove that they have a well-founded
fear of future persecution on account of their race, ethnic
group, religion, political opinion, gender or social group.
One can also obtain asylum, in the discretion of the INS officer
or court, if it is found that he or she has suffered severe
past persecution on one of these grounds. The applicant's
moral character can be considered but is not nearly as important
as proving a significant risk of persecution if the
individual is returned to their home country.
If the application is approved, the immigrant is entitled to stay in the U.S. and obtain similar "asylee" status for their spouse and minor children - even if they are back in Russia.
If an asylum application is denied, the case is "referred" to Immigration Court. That process can take from two months to 18 months, depending upon the judge's caseload and other factors. There will be a final court hearing where the applicant will be allowed to present evidence and testimony again in support of their case. The immigration judge usually makes a decision at the conclusion of the hearing. If the judge denies the case, the applicant can appeal to the Board of Immigration Appeals, and then to the U.S. Court of Appeals for the Ninth Circuit. These appeals can take up to five years or even more. During this process, the applicant is permitted to remain legally in the U.S. and their time waiting is not considered time "out of status" for purposes of the law penalizing persons out of status in the U.S.
Some groups of persons from the former Soviet Union who may have a very good chance of obtaining asylum include the following:
- Persons of Jewish ethnicity or religion.
- Pentecostal Christians, Baptists, and other religious minorities.
- Russians living in other republics of the Soviet Union such as Uzbekistan, Kyrgistan, Armenia, Latvia or even the Ukraine.
- Persons who engaged in political activity that presents a risk of persecution by the government in their home country.
- Other ethnic minorities such as Yakuts, Buryats, Chechens, in Russia.
It is always important to document the case. We help prepare statements from witnesses. We try to obtain letters or statements from institutions that corroborate arguments about persecution such as synagogues, churches, political organizations, ethnic organizations. Finally, we provide the INS with materials from international organizations, journals or even the Internet to document the risks of persecution. All of this substantially improves the chances of success. Of course, it is important to always tell the truth in presenting your case and evidence to the INS.
If you are a high-tech workers laid off by your
H-1 sponsor, the options are not great. It is often hard if
not impossible to find a replacement H-1 sponsor and if you
are out of status for even one month, the INS will not approve
the new H-1. There is no longer any grace period. You can
try to switch to a tourist visa or other non-immigrant visa,
but the INS will no longer give you much time, if any, under
these circumstances. Allowing yourself to become "illegal"
(that is, out of status) is not a good option because it may
bar you from a green card for up to 10 years. Under these
circumstances, filing an asylum application may be a viable
alternative to going home.
WARNING: The following is article
discussing legal issues. It is not intended to be a substitute
for legal advice. We recommend that you get competent legal
advice specific to your case. If you would like such advice
from our office, call (415) 777-4445 or (916) 349-2900 or
(408) 993-9737.
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