United States, 23^rd January: We are going to see what happens if a US immigrant on an H-1B visa gets laid off.

If you are working on an H-1B visa and are worried of getting laid –off soon, then you must use your EAD for securing any alternative job without having your new employer file a US H-1B petition.

When a US immigrant on an H-1B visa gets laid off

Liabilities of the employer—

• The H1 worker should receive the same benefits as his or her US counterparts. These include health insurance continuation (at employee’s expense), severance package etc.
• The employer must pay for you and your dependents’ return flight expenditure.
• In case, any US immigrant’s employer provides air tickets for going back to his/her home nation and the US immigrant gets another employment, then the US immigrant on an H-1B visa cannot cash the air ticket or buy “Air Ticket Protection” insurance for cashing that air ticket.

Fear if a US immigrant on an H-1B visa gets laid off soon?

1. In such a case, one must use one’s EAD for getting another alternate job to begin working immediately without requiring your new employer to file an H-1B petition
2. If you use your EAD and cannot find any new job immediately, even then, you shall stay in legal US immigration status.
3. You can opt for having your new employer file for an H-1B petition on your behalf provided you are on a valid US H-1B visa status. You can start working for your new employer once your new employer files an H-1B petition.

When a US immigrant on an H-1B visa gets laid off and the employer is not able to find a contract work for you?

1. Well, the US H-1B worker should be working for the petition employer and must be receiving full salary( as mentioned in the LCA) for maintaining his or her H-1B status. If the H-1B worker is not receiving any pay for the last three months, then, he or she is deemed to be out of status for the last three months.

Is your employer required to pay you salary even after you are laid off?

1. One needs to know that the USCIS( US Citizenship and Immigration Services) takes a couple of months to take an action after it gets notice from the employer for revoking the US H-1B worker’s petition. The employer is not under obligation to pay any salary to the laid off H-1B worker until then.
2. The employer needs to pay only when there is an employment relationship. That is only before the termination. So, the salary needs to be paid until the last day of your employment.

Related Read –  US H-1B visa  

Is an H-1B worker considered out of status despite of getting regular pay for two months after getting laid off?—

1. Yes, an H-1B worker is considered to be out of status from the date when her or she stops working for one’s employee.
2. But, if an H-1B worker finds a new employer and the new employer files a new H-1B petition on his/her behalf, the H-1B worker shall have to show his recent pay stubs.
3. Hence, it might be possible to change or extend your status during that brief period when you are getting severance pay stubs.
4. Another fact worth notable in this regard is that the USCIS, many times, may overlook brief gaps in pay stubs. However, this is not guaranteed.

If my current employer is not having sufficient work and is not willing to pay me?

1. In such a case, you are going to be considered to be out of status.
2. When your new employer makes an H-1B petition, you shall be required to furnish your latest pay stubs. In this case, you are not getting any pay, so, you will not be able to provide details of your latest pay stubs.
3. In certain circumstances, you get an approval for your new petition, you will still have to go to the consulate in your home nation for visa stamping before getting the authority to work for a new employer. Depending upon the circumstance, the consulate might or might not stamp your visa.

After getting laid off, can an H-1B worker apply for another status?

1. Yes, if both the H1B worker and the spouse are on H-1B or L1 visa, they can change their status to their spouse’s dependent status like L-2 or H-4.
2. You may need to change your status to F-1 if you want to study further. You can also change to B-2(tourist status) if the above options are not available.

Can one apply for an H-1B again if one has been laid off recently while being on an H-1B and has already applied for a change of status to B-2 and the application is pending still?

1. You must not have multiple applications pending. You can change your application back from other status(like B-2 or H-4) to H-1B.
2. You shall not be liable to the H-1B cap any more. The reason being you had sought to change your status( to H-4 etc.).

H-1B employer not complying with relevant rules?

If your H-1B employer is not complying with relevant rules with regard to work hours or wages, then you can report these violations to the ESA(Employment Standards Administration) of the Department of Labor.

Living in the US on an H-4 but unable to join the firm despite H1 petition getting approved, is my H-1B status valid or should I apply for changing my status to H-4?

Your H-1B status is not valid any longer. So, you must file form I-539 Change of Non-immigrant Status for changing your status back to H4.

How much time one gets searching for a new job after getting terminated while being on an H-1B?

1. There is no grace period if you are terminated. The so called ’10-day rule’ or grace period is applicable to the validity of H-1B workers before and after the beginning and end of the petition. Its not applicable regarding how long any H-1B worker is permitted to stay in the US searching for a new job.
2. So, its advisable to file for a change of status to B-1 or B-2 visa until you are able to get a new job. You can change your status back to H1 after you get a new job and your new employer submits a new petition for you.

Related Read- Trump vows he will not allow H-1B visa holders to replace US Workers