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FAQ for Lay Off and Job Loss while on H-1B Visa Q:
I am currently working on a H1-B visa & fear that I may be laid-off soon. I have my EAD & it has been
more than 180 days since my I-485 was filed. Can I work for a new employer by filing a
H1-B transfer if I don't want to use my EAD? What would be my status if I can't find a job
for a month or two after lay-off? Can I file for an H1-B transfer once I get a job after a month or two?
A:
It would be advisable to use your EAD to secure alternate employment as
you can start work immediately without having your new employer file an H-1B petition,
and if you are unable to find new employment quickly, you will remain in legal status.
However, as long as you remain in valid H-1B status, you can choose to have your new
employer file an H-1B petition on your behalf. As soon as the new employer
submits an H-1B petition on your behalf,
you can begin working for your new employer.
Q:
While working on H1 visa, what the liabilities of my employer if I am terminated (laid off)?
A:
H1 worker must get the same benefits as US workers, in terms of severance package,
health insurance continuation at employee's expense (COBRA) etc.
Even though your employer must pay for return flight expenses for you and your dependents,
this does not happen often as most H1 workers find another job with new employer in US.
By the way, if your employer gives you air tickets to go back to your home country, and
if you find another job, you can't cash that air ticket or try to buy 'Air Ticket Protection'
insurance to cash that ticket.
Q:
My employer is unable to find a contract work for me at the client site, I have not been receiving pay stubs
for last 3 months and forced me to give a letter of leave of absence 3 months ago. Last week, I got a
letter from my employer stating that I am given one month's time to look for another job.
Am I out of status?
A:
H1 worker must be working for petition employer and getting paid full salary as per mentioned in LCA
to maintain H1 status. You have been out of status for last 3 months.
Q:
I came to US about 1 month back on H1B visa. Due to weak economy and current market
conditions, this employer would like me to wait indefinitely before he can put me at a client site
when he finds work for me. My present employer has not been paying my salary, therefore I do not have any
pay stubs.
Meanwhile, I applied for position in other companies and received a job offer.
Can I transfer my H1B visa from
my current employer to new employer? Also, do I need to go back to my home country to get new H1B stamped for new employer?
A:
By law, your current employer is required pay you full salary (as mentioned on LCA) irrespective of whether he has any work for you.
You should write a letter to your employer demanding your salary. When your new employer files a petition for H1 transfer,
they should include the letter that you wrote to your current employer demanding your salary. This will maximize your
chances that USCIS allow you to change employer without leaving US. If USCIS denies this request and grants you new
H1 petition, you are not required new H1 visa stamp. You can go out of US and come back to US with valid H1 visa from your
previous employer and original I-797 Notice of Action showing the approval to work for new employer.
Q:
I have been staying in USA on H4 and I recently applied for change to H1 status.
But the company's financial situation is not good and they have been laying off people.
Therefore, even though my H1 petition was approved, I could not join the company.
Am I currently in valid H1B status or should I explicitly apply for change to H4 status?
A:
As the company that applied for your H1 visa can not allow you to join, they don't have a job to fill.
Your H1B status is no longer valid and you should file form
I-539 Change of Non-immigrant Status to
change your status back to H4.
Q:
I suspect that my H1-B employer is not complying with relevant regulations regarding wages,
work hours, or other issues (e.g., they benched me or are paying me less than specified on
the Labor Certification Application (LCA)). What can I do about it?
A:
You can report your employer violations of the H-1B program directly to the Department of Labor's
Employment Standards Administration (ESA). More information is available on the Department
of Labor's web site at
www.dol.gov/esa/forms/whd/fts_wh4.htm.
Q:
I am on H1B and I have been terminated. How much time do I have to search for new job? What if my
new employer files new H1B petition after I am terminated?
A:
If you are terminated, there is no grace period. Some people and some attorneys claim there is 10 day
grace period rule. That is not true.
The so-called "10 day rule" only applies to the validity of H-1B workers before and after the
petition begins and ends. It is not applicable regarding how long H1B worker is allowed to stay in US while
searching for new job. It is better that you file for change of status to something like B2 (visitor) or
B1(business) visa until you find new job. You can change back to H1 status once you find new job and your
employer files new petition for you.
Q:
If there are lay-offs in my office, will H1 workers have to go first before US workers?
A:
Not necessarily. It depends upon lot of factors.
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