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Options for H-1B Workers Laid Off Due to Coronavirus

The coronavirus pandemic has brought the world economy to a standstill. In the U.S., about 30 million people applied for unemployment benefits in the six weeks between mid-March and the last week of April. However, not included in these figures are hundreds of thousands of H-1B visa holders who are ineligible to receive unemployment assistance. The Los Angeles Times reports that more than 200,000 H-1B visa holders currently in the U.S. could lose their legal status by June.

Courses of Action

An H-1B application ties the recipient to a specific employer in a specific location for a specific number of hours. If an H-1B holder is laid off, he or she can only legally stay in the country for 60 days without getting paid. Therefore, those who have been laid off due to the pandemic suddenly find themselves facing three options: Find another job, depart the United States, or change their legal status.

Finding Another Job

All three of these options come with their own challenges anyway—but even more so during the coronavirus crisis. H-1B visas are for specialized workers with a certain set of skills; about 75% of them go to people working in the technology industry. Many unemployed H-1B visa holders looking for work find themselves with an extremely narrow field of options. They have 60 days to file a fresh H-1B application through a new employer or risk what’s legally called “accruing unlawful presence.” Staying in the U.S. beyond the authorized duration can come with penalties of being barred from re-entering the country for up to ten years.

Departing the United States

Departing the United States is also easier said than done. According to some sources, up to two-thirds of H-1B visa holders in the U.S. are from India, which has established strict restrictions on entry into the country during the ongoing pandemic. India is all but on lockdown, leaving many unable to stay in the U.S. but unable to return home.

Change of Status Application

That leaves applying for a change of status. Perhaps the best option for H-1B visa holders looking to remain in the U.S. is to apply for a change of status to a B-2 (tourist) visa. Applicants who apply for a B-2 visa during the 60-day grace period are usually allowed to stay in the U.S. while that application is pending. And given the current state of affairs of USCIS—offices closed, premium processing suspended, standard processing taking even longer than usual—a pending application would buy the applicant a good bit of time to continue job-hunting.

Be aware, though, that in order to apply, the applicant must still meet the qualification requirements for a B-2 visa. Applicants must have a residence abroad and prove their intent to return to their home country at the end of the temporary stay. They must also have the finances to cover their stay in the U.S.

Applying for a B-2 is a valid option only if the worker’s I-94 is still valid. If the I-94 has expired, they can try to apply for a change of status nunc pro tunc, that is, using a backdated I-94. Such a move is a discretionary request that USCIS considers on a case-by-case basis.

Voluntary Resignation

Finally, as individual states, cities, and counties within the U.S. begin re-opening at their own discretion, one situation remains: Employees who voluntarily resign from their position because they don’t yet feel comfortable returning to work.

Unfortunately, H-1B workers don’t have a lot of leeway in this regard. The 60-day grace period only applies to workers who were involuntarily terminated from their positions. H-1B visa holders who resign before the H-1B end date will be considered out of status on the day that their employment ends. Even if they still have time remaining on their H-1B approval notice or their I-94 record, they must depart the U.S. on or before their last day of employment to avoid accruing unlawful presence.

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