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H-1B Workers: What to Do If You Are Laid off from Your Job

The Law Office of Baoqin Wang is pleased to provide the following frequently asked questions and answers on H-1B layoff topics. If you need specific legal advice, you can contact us about our services by sending email to Attorney Wang.

This information is being provided for general educational purposes only and is not intended to be a substitute for actual legal advice. The Law Office of Baoqin Wang makes no warranties as to the accuracy of this information, and no attorney-client relationship is created by the use of this information by visitors to this website. This information is subject to change at any time.

Q: I am on "bench" (still employed, but not currently working or being paid) status right now. Am I still in lawful H-1B status or am I out of status?

A: The Department of Labor regulations prohibit an employer from putting an H-1B holder on bench status. If an employer places an H-1B in bench equivalent status, the employee must nevertheless be paid a full wage.

You are still in H-1B status even if you are put on bench, unless the employer clearly terminates the employment relationship.

Q: How long can I legally stay in the US with an H-1B after I am laid off?

A: At this time the laws and INS policies remain vague on this issue. The INS hopes to introduce proposed regulations in May that will pin down the exact amount of time H-1B visa holders can legally remain unemployed in the U.S. with an H-1B.

INS has informally suggested that unless and until there is a formal change in policy, terminated H-1B professionals who wish to remain in the United States should change status to another appropriate nonimmigrant classification. Otherwise the H-1B nonimmigrants are considered to be in violation of status if they remain in the United States after termination.

Q: What should I do to avoid being out of status after being laid off?

A: If your spouse is in separate nonimmigrant status, you can file for a change of status as a dependent of your spouse. For example: if your spouse is in a separate H-1B status, then you can apply for H-4 status; if your spouse is in F-1 status, then you can apply for F-2 status.

If you cannot file as a dependent of your spouse, then you have to file an application to change to some other nonimmigrant status. If you can find another job before being laid off, you should apply to transfer your H-1B status to the new employer as soon as possible. This will allow you to work for your new employer beginning when the application is filed. If you cannot find a job before you are laid off, you could apply for B-1 business visitor or B-2 tourist status, or for another nonimmigrant status (such as F-1 student visa), if you qualify for any of these.

Q: Which change of status application is easier to get approved? B-1, F-1, or H-1B?

A: If you have not filed a green card (permanent immigration) petition before, then your chances of getting approval are the same for any of these if you meet the eligibility requirements.

If you have previously filed for a green card, then you are very likely to be denied B-1 or F-1 status because your green card application has demonstrated your "immigration intent", which generally results in denial of a nonimmigrant application such as B-1 or F-1. A new H-1B or L application is your best alternative in this case, because H-1B and L applicants can have immigration intent.

Q: Will the INS deport me if I am out of status after being laid off?

A: Technically, the INS would be justified in ordering laid-off H-1B workers to leave the country. In practice, however, the INS has taken the more pragmatic approach of dealing with each person on a case-by-case basis.

Q: If there is a gap between the date I am laid off, and the date I file my new H-1B application, will my new H-1B application be denied?

A: Not necessarily. INS will continue its past policy of reviewing gaps in employment on a case-by-case basis to determine whether to exercise discretion under the current rules. As a rule, gaps in employment may be overlooked if they are brief, the applicant has not otherwise violated status, and the delay is due to circumstances beyond the control of the applicant and is commensurate with the circumstances.

Q: My H-1B transfer application was filed before my layoff. When can I begin working for my new employer?

A: Under a new H-1B law, you can work for a new employer once the petition is filed (this is commonly referred to as H-1B "portability"). A safe approach would be to wait for confirmation of INS receipt of an extension before starting a new job, either by waiting for the printed receipt or checking the INS status line. It should be noted, however, that technically the law does not require either this.

Q: I started to work for my new employer after the H-1B transfer application was filed. Am I considered illegal working if my H-1B application is later denied?

A: Under the new portability rules, if the application is denied, employment authorization would be regarded as immediately terminated, and you must stop working for the new employer. You are not considered illegally working before the denial date.

Q: There is a gap between my layoff date and the date that I filed my new H-1B application. Can I begin work for the new employer after the filing but before the approval?

A: You cannot begin working for a new employer until your application is approved. Only H-1B workers who applied to transfer to a new employer before being laid off can benefit from the new portability rules.

INS is considering a policy change that would allow at least limited gaps of employment for terminated H-1B professionals who are seeking the same benefits provided under the portability rules. At present, however, there is no such policy.

Q: If I am laid off and want to go back to my home country, is my employer required to pay for my return fare?

A: Yes. The law requires a sponsoring employer to pay for a return fare for a laid off employee. However, due to bankruptcy, etc. some employers do not observe this law.

Q: My employer started the labor certification process for my green card. If I am laid off before the certification is granted, can the labor certification process continue?

A: Yes. If you are laid off, your employer may continue the labor certification process, provided your employer commits to re-hire you after the greencard is approved. However, you must obtain some other legal status (such as new H-1B, B-1, F-1, etc.) if you wish to remain in the U.S. legally.

Q: If I find a new job with a different employer before the labor certification is approved, do I have to re-start the labor certification process?

A: Yes. If your previous employer terminated your labor certification application, then you have to have your new employer obtain a new labor certification.

Q: My employment-based green card petition (form I-140) is still pending. If I am laid off before the I-140 is approved, do I have to start the greencard application all over again (from labor certification)?

A: Unless your employer commits to re-hire you once your greencard is approved, you have to find a new employer to restart your greencard application from the beginning.

Q: After my I-140 was approved, I filed my I-485. If I am laid off before the I-485 is approved, do I have to start the greencard application all over again?

A: It depends on how long you have waited after your I-485 is filed. If your I-485 has been pending for 180 days or more, your I-140 or labor certification will still be valid, as long as your new job is in the same or a similar occupational classification as the one for which the petition was filed.

Q: I filed my I-485 180 days ago. I know I can use the "180-day rule" if I am laid off before my I-485 is approved. Does this mean that I can work for a new employer without applying for H-1B?

A: Yes, if you applied for a work permit under I-485. However, without H-1B status, if your I-485 is denied, you won't have any backup.