Laid-off H-1B visa holders face painful predicament

Alexey Komissarouk, a software engineering manager, was among those let go when San Francisco real estate startup Opendoor laid off more than 600 employees in mid-April in response to the coronavirus pandemic’s economic impact.

As an Israeli citizen working with an H-1B visa, Komissarouk can’t receive unemployment benefits. But more crucially, under immigration rules, losing his job set a clock ticking on his time in the United States.

Getting laid off is hard for anyone. But for international workers on H-1Bs, the specialized-skill visas often used in the tech industry, the consequences are far more severe than lost income. Holders of these visas have 60 days to find a comparable new job or leave the country.

Until recently, the issue was moot because tech layoffs were rare and skilled tech workers in high demand. But during the pandemic and economic crisis, as layoffs mount, suddenly thousands of overseas workers now face a stark reality of having to hustle to find work in a tight market. Many have put down roots here — they may have purchased homes, seen their U.S. citizen children enroll in school, be paying off student debt for degrees from American universities.

“The 60-day deadline ticking clock adds a lot of pressure and anxiety to what’s already a stressful situation,” Komissarouk said.

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The tech industry and immigration advocates are calling for a temporary extension of the deadline.

“Without action, these issues will lead to hundreds of thousands of unfilled jobs and have profound negative economic effects,” said a letter to the Departments of State and Homeland Security from TechNet and other trade groups, requesting that laid-off visa holders have at least until Sept. 10 to find new employment.

It did not receive a response. But the Trump administration, which is ideologically opposed to immigration, is already clamping down on H-1Bs and other work visas. An executive order in June temporarily blocks new work visas for people from outside the U.S. through at least the year’s end. The administration had previously made it harder for immigrants to get or renew H-1B visas.

“With each passing week, more and more people are being thrust into this impossible situation of within 60 days finding a job that doesn’t exist or leaving the country on a flight that doesn’t exist,” said Doug Rand, who worked on immigration policy in the Obama administration and is co-founder of Boundless Immigration, a technology company that helps immigrants obtain green cards and citizenship. “The sane thing to do would be to take that uncertainty off the table, to make sure nobody has to worry about renewing their immigration status or work permit for the duration of the crisis.”

Jeremy Neufeld, a researcher at the Niskanen Center, estimates that more than 100,000 H-1B holders could face the predicament this summer. That includes thousands who may have been waiting for over a decade to receive a green card because of nationality caps that have created a huge backlog.

“When recovery can finally start, businesses and teams who relied on the talents of these individuals will be handicapped,” he wrote.

But immigration foes said that requiring H-1B holders to leave the country if they lose their jobs is reasonable, pointing to the huge surge in joblessness among Americans.

“The H-1B program is not there to provide employment opportunities for people from outside the U.S.,” said Ira Mehlman, a spokesman for the Federation for American Immigration Reform. “It’s there to provide American companies with talents and skills that cannot be easily replicated. It was never the purpose of the program to keep these people employed and keep them in the U.S.”

Peter Leroe-Muñoz, vice president of technology and innovation policy at the Silicon Valley Leadership Group, which advocates on behalf of local companies, said that most people who qualify for H-1B visas are so highly skilled that they cannot be readily replaced with domestic employees.

“There were not enough Americans workers before COVID-19 to address these technology roles, whether in computer science or advanced engineering,” he said. “So many jobs were already unfilled because we simply did not have the tech talent in the U.S.”

Job-hunting in the time of COVID-19 comes with added complications. There are legions of other laid-off workers to compete with. Interviewing over Zoom obscures body language. Many companies are in belt-tightening mode and may not be comfortable adding workers, especially ones from overseas.

Besides layoffs, other corporate cutbacks can affect H-1B holders.

Visa holders who have their hours cut or their salaries reduced could be viewed as having a change in their status, Jafri said.

In such cases, “we are telling employers to file an amended petition,” said Reaz Jafri, head of immigration for law firm Withers Worldwide. “We are being very conservative because we don’t want people to run afoul of immigration laws.”

Julie Pearl, CEO of immigration firm Pearl Law Group, said she fears that reduced pay could be considered a material change from what the original visa application said. “We will fight to protect those people’s ability to stay here and believe the courts will be sympathetic,” she said.

Even something as innocuous as working from home — which almost every tech worker is now doing due to shelter-in-place orders — theoretically could affect the visas since they are tied to working at a specific location.

“We have had to prepare a ton of amended labor condition applications for people no longer in the office,” Pearl said. “That change is not going to get anyone in trouble, it’s just bureaucratic.”

Visa holders who are furloughed, meaning they are unpaid but often still receive benefits and have not officially been let go, are seen as equivalent to permanently laid-off ones for visa purposes, so they also face the 60-day deadlines.

Pearl and Jafri both said that laid-off H-1B holders can apply for visitor visas to buy them more time to seek employment. Some could even chose to return to graduate school and obtain student visas — although they’d have to pick an institution offering in-person classes, since the administration wants to deport international students taking all-remote classes.

U.S. Citizenship and Immigration Services said in an email that it is monitoring pandemic immigration issues and will “consider stakeholder recommendations (and) assess various options related to temporary worker programs in coordination with (the Department of Homeland Security) as the situation evolves.

Upon request, it “may provide special support for individuals who may be affected by circumstances beyond their control,” it said, mentioning visa extensions or expedited processing as possibilities.

There is a big silver lining for laid-off H-1B workers. If they find a new job, their existing H-1B visa can be transferred to the new employer — they don’t have to go through the annual lottery again.

Pearl said she fears that the administration might take a hard-line stance on that and “find a way to say, ‘Nope, sorry, too bad; you lose a job, you’re not a U.S. worker so you’re out.’ We will try to litigate if that happens,” she said.

Komissarouk did land a job within the deadline and got his visa transferred.

“In some ways I got a little bit of a head start” because Opendoor’s layoffs came earlier than those at some big-name tech companies, like Uber, Lyft and Airbnb, he said. “If I were still in the market today, I would be competing with a bunch of engineers from these very fancy top-tier companies.”

Tech and immigration advocates fear that the net result of all the skilled-visa crackdowns will be increased offshoring: American firms will still hire workers from overseas, but will keep them based in their home countries or satellite offices in countries with friendlier immigration policies like Canada. That means less tax revenue and less economic activity for the U.S. The Bay Area, which has one of the largest concentration of H-1B workers in the country, could particularly feel the impact of such a move.

The explosion of working from home, coupled with anti-immigration administration policies, “creates the perfect storm for shifting high-tech jobs overseas,” said Nick Bloom, a Stanford economics professor. “High-tech firms won’t be bothered if the person is in Santa Clara or Mumbai. But we care about it because those workers provide auxiliary jobs and pay huge amounts of taxes that support social services.”

Carolyn Said is a San Francisco Chronicle staff writer. Email: [email protected] Twitter: @csaid