The law considers H-1B employment to be “at will” employment—that is, either the employer or the employee may terminate the working relationship at any time. H-1B employees can resign, be terminated, or get laid off or furloughed before the validity of their H-1B visa expires. Because the H-1B worker’s legal status in the U.S. is tied to his employment with the sponsoring employer, if he finds himself out of work, he must take quick action if he wants to remain in the country. The termination of employment also affects any H-4 dependents (spouses or unmarried children under 21) who might have accompanied the H-1B worker to the United States.
In short, the legal status of H-4 dependents depends on that of the H-1B employee. If the H-1B employee goes out of status, the H-4s do, as well. USCIS grants a discretionary 60-day grace period to H-1B employees who have been involuntarily terminated from their positions. The H-1B has 60 days to find a new job and H-1B sponsor, change their status, or leave the country before they begin to accrue unlawful presence in the country. Thus, H-4 dependents have the same 60-day grace period before they are considered out of status.
Employers of involuntarily terminated H-1B employees are required to pay “reasonable costs of transportation” for the worker’s return to his home country. This obligation, however, does not extend to the employee’s belongings (furniture, clothing, boxes) or H-4 dependents. This means that if an H-1B worker and his family decide to leave the country, the family is financially responsible for the plane tickets of spouses and children.
Effect on Work Visa
In May 2015, a law took effect allowing H-4 dependents (namely, spouses of H-1B visa holders) to obtain an Employment Authorization Document (EAD) and work in the United States. This EAD remains valid through the 60-day grace period, meaning the spouse can continue working for those two months following the termination.
H-1B Finds New Employer
Let’s say that the terminated H-1B worker is able to find a new job before the end of the grace period. His new employer agrees to file an I-140 on his behalf. How does this affect the status of the H-4 dependents?
Again, the legal status of an H-4 depends entirely on the legal status of the H-1B visa holder. The H-4 will remain in legal nonimmigrant status as long as the H-1B does the same. The H-4 classification is not specific to an employer. No action is required on the part of an H-4 when the principal H-1B worker changes employers. However, the same cannot be said for the H-4’s EAD, which is tied to the H-1B visa holder’s approved I-140. If the original, approved I-140 is revoked, then the EAD is no longer valid. The H-4 visa holder must wait until the new I-140 has been approved to apply for a new EAD.
H-1B to H-4 Change of Status
Finally, consider the scenario in which two H-1B visa holders working in the U.S. are married to each other. If one of them (say, the husband) is terminated, he should consider applying for a change of status to an H-4 dependent of his wife. If the change of status is approved, both will be allowed to remain in the U.S. until the original H-1B petition expires.
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