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H1b Layoff Issues and tips

If you are 'laid off' or 'benched' while you are on an H1B Visa ...what are your rights and options?

A “benched” employee, is someone who is currently between work projects, and typically refers to someone who is sponsored/employed by a consulting firm/agency who then sub-contracts their services out to an 'end' client.

In the eyes of the law, the consulting firm/agency is considered your employer. The company that you actually provide services to, is the 'end' client.
i.e. it is the consulting firm/agency that petitioned the INS to grant you an H1B Visa.

1) When a foreign national is benched because there is no immediate work available, you are still entitled to receive compensation.

2)The employer is bound to pay the foreign national as attested on the labor condition application. The employer may NOT withhold payment claiming that the employee is not entitled to it because the employee did not work.

3)Should the employer fail to pay the H-1B employee, the employer will be in violation of 'federal regulations' and will have to pay any monies owed in salary.
Also, the employer risks incurring possible penalties for failure to comply with the employer requirements of H-1B sponsorship.

4) When an H-1B employee takes time off from working for personal reasons (e.g. vacation / illness / leave of absence etc), generally, the employer does NOT have to compensate the employee for this temporary period of time.
However, your employer will have to provide compensation if it was contractually agreed OR if they 'normally' do and normally make this available to its employees.

5) Employers are also bound to pay their H-1B employees even when the employer experiences a temporary shut down in its operations.
i.e. If the employer shuts down the company for a period of 10 days during the holiday season, it must continue to pay its H-1B employees during this period, even if the employer is not compensating the U.S. workers.

If you have any issues regarding payment from your employer... You should contact your local Department of Labor (DOL)

As discussed above, employers accept important responsibilities when choosing to sponsor a foreign national on a H-1B. Employers should be careful to be aware of the requirements imposed on them to ensure that they are in compliance. Doing so minimizes potential violations and ensures that the employer can continue participating in the H-1B program.

Can I transfer my H1B to other company?
To transfer your H1B, you need 'valid' employment in US. Also you have to prove that you have recent pay stubs (at least 60 days OLD) and last years w2 forms (if applicable).
If you do NOT have recent pay stubs, then you may need to explain the reasons to the INS. (Unpaid vacation or long sick leave approval letters from your current employer may be considered).

As per law, the petitions which were filed AFTER the last date of employment, are NOT eligible for change of status or change of employment because the applicant is out of status when he/she loses the job. The laid off H1B worker will be considered out of status even though he/she has a valid H1B visa in their passport or valid I-94 card.

There is NO "Grace Period" permitted when an H1B employee changes his employer. The INS is proposing implementation of a rule permitting an H1B employee who no longer works for the original employer for some period of time to file an H1B after leaving the current employer. This time frame could possibly be up to 60 days. Many INS Service Centers are currently applying a 'reasonable period' of time standard, on a case-by-case basis, for favorable adjudication even though there is a gap between leaving an employer and filing a new H1B petition.

How long can I stay here after being laid off?
It is advisable to leave the country as soon as possible to avoid any potential legal issues. You can only be in the US only if you have a 'valid' visa and you are in 'status', or your VISA application with INS is in 'process'.

The grace period is in dispute as to what is a 'reasonable' amount of time, but many say that 10 days grace period may be considered to leave the country after being laid off.

I am still the employee of my company, but without pay, what is my status?
As per law, you should get paid from day one of your US employment.
You should not be in the US without a salary unless you are on unpaid vacation or sick leave. Your status is legal and valid, but if you are NOT able to find another employment quickly, it is advisable to leave the country.

What are the other options?
If you are ‘likely’ to be laid off then you have the following options

1. Find another H1B sponsoring company and file your H1B transfer

2. If you have your spouse with valid status, change your status to dependent status

3. You can change your status to F1. You need UNIV admission and you have to file for change of status application with INS.

4. You can take an unpaid vacation and leave the country. Keep your H1B status valid for your current employer. Once the market is up, you can come with your existing valid VISA and work for the same employer.

I am leaving the US. Can I come back with the same VISA and join another employer?
No, your VISA is valid for the employer who sponsored your VISA. You cannot enter with this VISA and join another employer. (If you have applied for an H1B transfer and got the approval, then you can enter with your OLD VISA and H1B approval of the new employer) At the port of entry, INS may verify your records with your current employer. If they found any issues, they will deport you from the airport itself. Once you are deported, it is very difficult to get any US visa again.

If you have any issues regarding payment from your employer... You should contact your local Department of Labor (DOL)

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Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. Readers must not act upon any information without first seeking advice from a qualified attorney.
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