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H-1B Employees Who Are Laid Off or Furloughed

An H-1B work visa ties the visa holder to a certain employer in a certain location in the United States. Sometimes, however—especially during tough economic times—employers are forced to trim their staff and let employees go. This involuntary termination of employment puts H-1B workers in a difficult position, as their legal status in the country depends on that employment. USCIS provides a discretionary grace period of 60 days for terminated visa holders to reassess their options before they begin to accrue unlawful status. This gives the H-1B holder roughly two months to pursue three options: Find another job, change their status, or depart the United States.

Layoffs and Furloughs

Involuntary termination (through no fault of the worker, i.e., no work-performance or behavioral issues) comes in two forms: layoffs and furloughs. Layoffs are considered a permanent termination of employment. A layoff usually means that the position itself is being eliminated, and a laid-off employee should not expect to be able to return to work for the same employer.

Conversely, a furlough means that the employee is placed on a temporary non-working, non-paid status. Companies will typically furlough employees whom they can’t afford to pay but don’t want to lose entirely. Furloughed employees usually get to keep their employment-related benefits (like health insurance) and are sometimes even given an exact date when they will be able to return to work.

Laid-Off H-1B Workers

As stated above, H-1B visa holders who suddenly find themselves unemployed have three options. They can choose to seek a new job and a new H-1B sponsoring employer. They should be mindful, though, that H-1B visas are reserved for specialty occupations that require a certain set of skills. Roughly 75% of them are granted to workers in the technology industry. Job seekers would have to find a comparable job in order to remain eligible for H-1B visa status, leaving them with a somewhat narrow field of options.

A laid-off employee could also choose to depart the United States. In the event of a layoff, the employer is required to offer “reasonable costs of transportation” for the employee to return to his or her home country. This means either a plane ticket or reimbursement for a plane ticket purchased by the employee. This obligation does not extend to the employee’s belongings (furniture, clothing, boxes) or to any H-4 dependents of the H-1B worker.

Finally, the H-1B visa holder could try to change his status. Common options include changing to an F-1 (academic) visa or a B-2 (tourist) visa. An F-1 visa would require the worker to return to school full-time in pursuit of an advanced degree, like a master’s degree. Filing for a B-2 visa would act as more of a stopgap measure, buying him additional time in the U.S. to look for a job or travel before returning home.

Workers who apply for a change of status during the 60-day grace period are legally allowed to remain in the country as long as the application is still pending. However, H-1B workers looking to change their status should be aware that, in order for their application to be approved, they must meet all of the qualifications for the visa for which they are applying.

Furloughed H-1B Workers

The H-1B agreement between the employee and the sponsoring employer requires the employee to be paid the agreed-upon wages. If he’s not getting paid, then USCIS considers the agreement invalid and the employee to be out-of-status. Therefore, employers must continue to pay the full salary (as stated in the Labor Condition Application and the original H-1B petition) of furloughed H-1B employees for the duration of the furlough.

The employer might also choose to reduce the H-1B employee’s hours (say, from full-time to part-time). This reduction of hours would constitute a material change in the work agreement, and the employer would have to file an amended LCA and H-1B petition with USCIS to notify them of the revision to the terms and conditions of employment. During a furlough, an employer might also require an H-1B worker to use any accrued vacation time or sick time. In this case, the employer and employee both would have to be careful that they are complying with H-1B regulations.

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