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H Visas |
For
Laid Off H-1 Workers, Asylum May Be A Way To Stay In The U.S.
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by Christopher A. Kerosky, Esq. |
I recently helped a client who had just been
laid off from his high tech employer to get the right to stay
in the U.S. forever for him and his family. Instead of labor
certification (which takes years), my solution took three
months. He no longer had to suffer with a succession of high-tech
H-1 sponsors, the uncertainty of labor certification during
a time of massive lay-offs, and being at the absolute mercy
of his employer/sponsors. Instead, he filed for asylum
and, after a short simple process and one interview, he and
his family had the right to stay here permanently.
Now, with the advent of even more layoffs in the high-tech industry, persons from the former USSR should think seriously about asylum as an alternative to going home.
Best of all, 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.
The process starts with an application sent to the INS office in Nebraska, which is the central receiving location for asylum applications. If the applicant lives in the Bay Area, the file is then sent to the INS asylum office at 75 Hawthorne St., San Francisco. Within approximately two months after applying, the applicant is usually given an interview. The interviews are held at the Hawthorne St. office and typically last about one hour. The INS has a well-trained staff who only conduct asylum interviews. The confidential interviews are conducted by one INS officer, who then makes a recommendation to his superior to either approve or deny the application. Usually, a decision is made on applications two weeks after the interview. The initial stage is usually over at this point -- if the decision is positive, the client has received the right to stay here in approximately three months!
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.
We help the client 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, 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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