During the COVID-19 pandemic, I received several questions from H-1B workers who are losing their jobs. The H-1B non-immigrant work visa allows foreign workers to temporarily work in the U.S. in specialty fields such as IT, architecture, engineering, mathematics, science, and medicine. While many advantages to H-1B status, one drawback is that your rights to stay within the U.S. are tied to your employment.

So, as an H-1B worker, how do you maintain lawful immigration status if you end up losing the very job upon which your visa and status are based on?

What are your H-1B Employment Rights?

Unless you have a written employment contract that states otherwise, the law considers H-1B jobs to be “at will.” This means the employer has the right to terminate employment for lawful reasons at any time. However, you have some rights, too. You have the right to be treated like any other U.S. citizen employee in regard to company termination policies. For example, if your employer provides severance packages to its employees, you are entitled to this benefit. Your employer also should pay your salary through termination date and any unused vacation. Also, H-1B workers can recoup any unpaid wages during the entire H-1B period. Finally, if terminated, your employer must pay your return airfare to your home country if you plan to leave.

If terminated for no fault of your own, you can even obtain unemployment insurance. According to USCIS, this will not be considered a public charge offense.

Consequences of Losing H-1B Employment

If laid off, unfortunately you are immediately out of status on termination date. However, you do have a grace period of up to 60 days to find another employer who can sponsor a new H-1B, or seek to change your visa status or depart the United States.

Regardless of the reasons, your employer is legally obligated to notify U.S. Citizenship and Immigration Services (USCIS) about the termination. Once notified, USCIS will then revoke your H-1B petition. If you have not arranged for another employer to submit an H-1B petition or changed to another status, you will become out of status and deportable after the 60-day grace period.  

How Maintain Lawful Status?

Consider some options if you find yourself in this situation. If you are losing your job for reasons not related to your work performance, you will likely be given advance warning by your employer. Upon receiving such notice, you should immediately begin looking for another H-1B sponsoring employer who can file Form I-129, Petition for a Nonimmigrant Worker, on your behalf. This will be considered an “extension” of status.

Applying for a “change of status” is another way to remain in status in the U.S. This could be applying for an H-4 visa, in case you have a spouse who also is working in the U.S. with an H-1B visa. Or this could be applying for an F-1 student visa, considering a college or university accepts you for a full-time program.

Don’t let your H-1B status lapse and compromise future visas and immigration benefits. If you have any questions regarding your next H-1B or existing H-1B status, contact immigration lawyer Catherine Brown today at 303-322-2117 or at [email protected] for a free case review or you can also schedule online.