All H-1B FAQs
Q: I am currently working on an H1-B visa and fear that I may be laid-off soon. I have my EAD, and it has been more than 180 days since my I-485 was filed. Can I work for a new employer by filing an H1-B transfer if I don’t want to use my EAD? What would my status be 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 an H1 visa, what are the liabilities of my employer if I am terminated (laid off)?
A: H1 worker must get the same benefits as U.S. 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 since most H1 workers find another job with a new employer in the U.S. By the way, if your employer gives you air tickets to go back to your home country, and 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 contract work for me at the client site, I have not been receiving pay stubs for the last 3 months, and they 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 the petition employer and getting paid full salary as per mentioned in LCA to maintain H1 status. You have been out of status for the last 3 months.
Q: I was recently laid off. Someone told me that until USCIS revokes the petition, my employer is required to pay me salary. Is that correct?
A: When your employer sends the notice to USCIS to revoke your petition, USCIS takes months to act on it. However, that does not mean that your employer is obligated to pay you until then. Your employer is required to pay only as long as there is an employment relationship: that is, until you are terminated. Therefore, they have to only pay you until the last day of your work. Of course, if your company has any other policy, such as notice period, severance pay, etc., they may have to pay you for that.
Q: I came to the U.S. about 1 month back on an H1B visa. Due to the 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 a position in other companies and received a job offer. Can I transfer my H1B visa from my current employer to the new employer? Also, do I need to go back to my home country to get a new H1B stamped for the new employer?
A: By law, your current employer is required to pay your full salary (as mentioned on LCA) irrespective of whether they have any work for you. You should write a letter to your employer demanding your salary. When your new employer files a petition for the H1 transfer, they should include the letter that you wrote to your current employer demanding your salary. This will maximize your chances that USCIS will allow you to change employers without leaving the U.S. If USCIS grants your new H1 petition, you are not required to have a new H1 visa stamp. You can go out of the U.S. and come back to the U.S. with a valid H1 visa from your previous employer and original I-797 Notice of Action showing the approval to work for the new employer.
Q: I was recently laid off. However, they provided me a good severance package, and as part of that, I will be receiving my regular pay stubs for another two months after stopping to work for them. Am I considered out of status during that period?
A: You are considered out of status from the day you stop working for your employer. However, when you find a new employer and they file a new H-1B petition for you, you will have to show your recent pay stubs. Therefore, it may still be possible to extend or change status during the period you are receiving severance payments. Also, please note that, many times, USCIS overlooks brief gaps in pay stubs, but that is not always guaranteed.
Q: I have been staying in the USA on an H4 and I recently applied for a change to H1 status. However, 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 the 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).
Filing an employer complaint
Q: My current employer does not have much work and doesn’t want to pay me. However, just to help me out, he has agreed to keep me as an employee without pay. Would that work?
A: Unless you are actively employed and being paid your full salary as mentioned in the LCA, you are considered out of status. Such employment without pay does not mean anything and would not help you in any way. When your new employer applies for an H-1B petition, you will have to provide your recent pay stubs, and since you are not getting paid, you would not be able to produce them, and that would cause problems for you. Even if your new petition is approved, you may be asked to go to the consulate in your home country for visa stamping before being allowed to work for the new employer. Furthermore, the consulate may or may not stamp your visa, depending upon the circumstances.
Q: I am on an H1B, and I have been terminated. How much time do I have to search for a new job? What if my new employer files a 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 a 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 an H1B worker is allowed to stay in the U.S. while searching for a new job. It is better that you file for a change of status to something like B2 (visitor) or B1(business) visa until you find a new job. You can change back to H1 status once you find a new job and your employer files a new petition for you.
Q: If there are lay-offs in my office, will H1 workers have to go first before U.S. workers?
A: Not necessarily. It depends upon many factors.
Q: I was with employer A earlier who laid me off one month ago and sent a letter to USCIS to revoke my petition. What happens if I find another employer B to sponsor my H1B meanwhile?
A: When the employer sends the notice to revoke a particular H-1B petition, USCIS typically takes months to process that request. Therefore, the revocation of the H-1B may not show up in their system for months. However, that is how it is practically done and is not an official policy. Therefore, as soon as your employment is terminated with an employer, if some other employer has not already filed a petition on your behalf (or if you have not filed an application to change your status to some other nonimmigrant status), you should try to find the job with another employer as soon as possible and have them file your H-1B petition. You should attach your current pay stubs to the new petition. If you didn’t continuously maintain your status, after your H-1B petition is approved, you may not get a new Form I-94 authorizing additional stay, but you may be asked to go back to your home country for visa stamping. After that visa is stamped, when you enter the U.S. again, you will get a new Form I-94 at the port of entry.
Q: I used to work with employer A earlier. I left them and joined employer B. Employer B laid me off, but my petition with employer A is still valid, and they didn’t revoke my H-1B petition yet. Can I just join the employer A again?
A: Yes, you are allowed to return to work for employer A who has a “dormant” H1B petition. However, as employer A didn’t revoke the petition, the Department of Labor may take the position that you were never terminated, and your employer may be asked to pay the back wages while you were not employed for the duration in between. Your employer should consult an attorney who specializes both in immigration as well as in labor law.
Q: I was recently laid off while on H-1B. I applied for a change of status to B-2 (tourist), and that application is still pending. I have now found another employer willing to sponsor me. Can I apply for an H-1B again?
A: It is best not to have multiple applications pending in parallel. As long as you are eligible for more time on H-1B, you can change it back from another status, such as B-2 or H-4, to H-1B. You will not be subject to the H-1B cap again, simply because you earlier requested to change to some other status like H-4.
Q: My employer just laid me off. Is it possible for me to apply for another status?
A: Yes. If both you and your spouse are on H-1B or L-1 visa, change your status to your spouse’s dependent status, such as H-4 or L-2. In case you would like to study further, you may want to change the status to F-1 (student status). If any of these options are not available to you, you may want to change to tourist status (B-2).
