It is not uncommon for an individual in H-1B status to be furloughed or laid off. If you are working on an H-1B visa in the US and are facing a furlough or layoff, here’s some guidance:

 

Lay Off or Furlough?

The first step is to figure out if you are being placed on a temporary furlough (or leave), or a permanent layoff. A furlough refers to a temporary reduction or elimination of work hours, while a layoff typically refers to a permanent severance of the employer/employee relationship. 

 

If You are Being Laid Off: 

If being permanently laid-off, (aka fired, downsized, let go, position is not needed, etc.) then you need to take action in the next 60 days. The H-1B sponsoring employer should withdraw their petition for your H-1B status. This means that you will lose your H-1B authorization to remain in the United States. Fortunately, United States Citizenship and Immigration Services (USCIS) grants a 60-day grace period for all H-1B workers who may suddenly find themselves unemployed. This means you have 60 days from when your employment ends to do one of the following:

• Find a new sponsoring employer and transfer your H-1b.
• Change your H-1B status to another status, such as a B-2 Visitor visa or H-4 (if your spouse is on H-1b status). Note that merely filing the application to change status allows you to stay in the U.S. while it is pending (and USCIS might take 6 months or longer to adjudicate it).
• Leave the Country

 

If you have been temporarily furloughed:

If you have been placed on a temporary furlough, the situation is a little more complicated. USCIS only considers a worker “in status” when they’re being employed and paid at least the minimum rate specified on the Labor Certification Application from the initial H-1B application. An employer is not allowed to place an H-1b worker on furlough without pay, as the Department of Labor (DOL) specifies that H-1B workers must be paid the required wage rate for all “nonproductive” time caused by conditions related to employment. This requirement only ends upon termination of employment.

However, this does not apply if the employee requests the leave. If both parties agree, this is often a good solution. This type of leave is often used for taking care of a sick relative, taking maternity leave, or recovering from an injury or other medical situation.

Another option is that the employer can amend the H-1b petition from full time to a range of hours (such as 5-40 per week). For example, if your job now only requires you to work a little bit each week (such as a dentist seeing emergency patients), this can be a great solution. Or some people have a little bit of work they can do remotely, but not enough to keep them busy full-time. This solution often works great for both parties. The employer can keep you employed and the H-1b worker gets to stay in the U.S. and earn a little bit of money while waiting for the COVID-19 situation to pass.  

If your employer is trying to temporarily furlough you without pay, it may be prudent to talk to your employer about addressing this violation and see if there is a viable alternative.

 

Can you work from home?

Finally, if your job allows you to work remotely from home, you can. However, if you will be working different hours, or live in a location that is in a different MSA from your employer, you must submit an amended H-1B petition to reflect the new location and hours. 

 

Am I eligible for Unemployment?

I’ve seen immigration attorneys advocate both ways on this. Our interpretation of the law is that H-1b workers are not eligible for unemployment, as their status is dependent on them working. In other words, once an H-1b worker is laid off they are in the grace-period, and not “work-authorized” as required to receive unemployment insurance.

However, a spouse on H-4 EAD that gets laid-off may be eligible for unemployment, subject to any state laws. Similarly, someone who entered on H-1b status and has a valid EAD card based on a pending I-485 application, should fall under the definition of work-authorized and may be able to receive unemployment. Again, this is subject to state laws.

 

Can we help you?

Understanding your options is often complicated and nuanced and we recommend professional guidance to ensure you do not violate your status and jeopardize your future right to work and/or live in the U.S. We here at Feldman Feldman and Associates are here to help you figure out the best solution for your personal situation. If you are an H-1B worker that is being laid-off or facing any change in your employment, contact us on guidance for your specific case. You can reach us through our website or at (619) 299-9600.