I have an approved labor certification, but was recently laid off. What are my immigration options with my new employer?
Your employer can file for a temporary worker visa (H-1B) if you meet the specialty occupation qualifications set forth in section 214(i)(1) of the Immigration and Nationality Act (hereinafter “INA”). INA § 214(i)(1) grants United States Citizenship and Immigration Services (hereinafter “USCIS”) the authority to approve H-1B petitions for up to three years at a time. INA § 214(i)(1). However, the statute restricts the total amount of time that an individual can be granted H-1B status to a period six years. Id. Nonetheless, legislation enacted in 2002 permits H-1B nonimmigrants reaching the end of their permitted six year stay to extend beyond the sixth year, as long as a labor certification application has been pending for at least one year. AC-21 § 106(a). Furthermore, USCIS does not require that the labor certification application be filed by the alien’s current employer. Memorandum from Donald Neufeld, Acting Associate Director, Domestic Operations, dated May 30, 2008 (HQ 70/6.2). I
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