As the Coronavirus pandemic continues its deathly spread and claims over 280,000 lives and infects nearly four million people worldwide, the US and global economy is taking a big hit. With close to 33 million people filing for unemployment in the US alone, the global economy has contracted by 4%.
This unemployment has affected foreign skilled-workers in the US as well including those on various visas including H1B visa among others. The H-1B visa is a nonimmigrant work visa for foreign graduate level workers who work in a specialized occupations due to being qualified in a specialized field of study. H-1B workers are permitted to work in the US for a period of three years, extendable by another three. The Coronavirus-triggered economic recession in the US increased the number of lay-offs and furloughs specifically impacting the H-1B visa workers whose employment is tied to a specific employer.
In several states within the US, jobs are “at will’ which means the employer is not obligated to give the employee a reason for termination and can terminate the employment for lawful reasons at any time. For H1-B visa holders, the employee has 60 days to find another employer who can continue the H1-B sponsorship or seek to change the visa status to another valid one, if laid off. Nevertheless, the employee must be treated like any other US citizen employee with the similar company policies when applicable but is unable to claim certain state offered unemployment benefits. However, certain states may permit unemployment benefits where the termination is specifically related a disaster relief such as Covid-19. But this may vary state to state. Once terminated, the employer is obligated to notify USCIS about the termination at which point the USCIS must take action and revoke the H1B granted under the employee’s name. At this point, the employee begins to accrue unlawful status and should the individual overstay a period of 180 days in the US, then the individual may be barred for 3 years and the bar can rise to 10 years with a greater overstay period.
We, at Emandi Law Firm bring you the best advice to follow if an employee is laid off on H1-B:
Talk to Manager/HR: Usually, the employee will be first given a warning by your employer. This can be as early as three months in advance. The employee can either talk to the employer and find an alternative of transferring to another department or taking a leave of absence to find another H1-B sponsoring employer and work on transferring his / her I-129 petition.
Documents for grace period: Once the 60-day grace period kicks in, not only should the employee have been actively looking for another H1-B sponsoring employer but also maintain documentation substantiating evidence of the same. USCIS expects the employee to provide evidence in the form of active pay stubs and all forms of recruitment documentation like offer letters, requests for interviews, etc. that reflect your search efforts.
Change of Status: Seeking a change of status is another alternative. This could be H4, in case the employee has a H1-B beneficiary spouse or to F1, student visa. This of course, has to coincide with college admissions and acceptance to an accredited university in the US.
H1B Alternatives: Some employers have the option of bringing in foreign talent under a L1A, intra-company transfer. These have criteria like being at a managerial level and in some cases, being an employee in the parent company at the country of origin for at least a year.
Relocation Costs: If this is not possible, or if the current visa status expires sooner than the 60-day period and the employee end up leaving, it is advisable to inquire if the employer has planned to fund the relocation costs back to country of citizenship, or original residence. This is applicable only for the H1B employee and not the dependent family.
Lastly: The important thing to note is to do all of the above when still in (current) status else, try and the leave the US where possilbe