As an H-1B worker in the U.S., you’re likely aware that your immigration status requires careful monitoring even under normal circumstances, when the world isn't in the clutches of a pandemic. Falling out of status can affect your ability to extend your stay in the United States, change jobs with your current employer, accept employment with another employer, or apply for a new visa during a trip home. In a worst-case scenario, not maintaining status could get you deported. Therefore, you always need to do your part to maintain your status by continuing to work according to the terms of your H-1B petition.
But now there is a global coronavirus or COVID-19 pandemic. The resulting government-mandated “stay-at-home” orders and work stoppages rolling out across the country can make maintaining your H-1B status even more challenging. Working from home or a new location, reducing your weekly hours, changing jobs, getting paid less, or even losing your job call for close evaluation to see if a change could impact your status.
The following provides some common scenarios that the pandemic has caused and offers planning options to consider.
If your H-1B petition already stated that you would work from home, and you’re still working from home, you’re maintaining status regardless of the pandemic.
On the other hand, if you normally worked at your employer’s location, and you now will work from home, as long as your home is within normal commuting distance of your normal work location, all you’ll need to do is post a Labor Condition Application notice at your home work space. Your employer will give you the notice and explain what to do.
If you will work from a location outside commuting distance from your normal work location, and if that location was not listed on your H-1B petition, you will need to talk with your employer to determine how long you’ll be working there. If it will be for more than 60 days, your employer likely will need to submit an amended H-1B petition.
Your H-1B petition stated whether your job is full-time or part-time, noted the hours per week if part-time, and the rate of pay. If you will be working fewer hours than the hours noted on your H-1B petition, your employer might need to submit a petition to inform U.S. Citizenship and Immigration Services (USCIS) of the change. Otherwise, failing to work and be paid as outlined in the H-1B petition could affect your status and get your employer into trouble with the Department of Labor.
As you will recall from when your employer submitted your H-1B petition, H-1B status is job-specific. A slight change in your duties would not require any action.
For a major change (called a “material change” in H-1B terminology), your employer will need to submit an amended H-1B petition. An example of a material change would be from Civil Engineer to Accountant. A non-material change could be a mid-level Civil Engineer advancing to the next step in the career progression. In the former case, the new duties are entirely different. In the latter, the job at the core remains essentially the same.
Changes that are less clear than these examples will call for a close review, preferably with qualified immigration counsel, to assess the impact.
If your employer is implementing a voluntary furlough (putting workers on forced leave) or an involuntary work stoppage under a state law order, you’ll want to talk with the human resources office to ask how your job might be affected.
The H-1B rules offer some guidance, but do not address global pandemic contingency planning. What is clear is that if your employer initiates the furlough and puts you on leave against your choosing, your employer must pay your wages according to the H-1B petition.
Conversely, if you ask not to work out of fear of contracting the virus, your employer does not need to pay your wages while you are not working.
The middle, unsettled ground is when the government orders your employer to close, and you are not able to work. There are arguments on both sides of whether the employer must pay H-1B workers in that situation. If you still have questions after talking with your employer, you could seek out a qualified immigration attorney on your own for a consultation.
If your employer terminates you, either as a result of the pandemic or otherwise, your employer must notify USCIS and offer to pay for your return transportation to your last country of residence abroad. Until your employer has notified USCIS and requested revocation of your H-1B petition, your employer is liable for your wages as outlined in your H-1B petition.
If you refuse the return transportation funds and choose to remain in the United States, the H-1B regulations provide a maximum grace period of 60 days in which to have another employer submit an H-1B petition for you, change to another status, or depart the United States. USCIS can shorten the 60-day period if it determines, while reviewing an application you submitted, for example, that you did not act quickly or proactively enough to maintain your status. If you did nothing and suddenly on day 59 submitted an application change status, USCIS may determine that you are not entitled to the full 60 days and require you to leave the United States.
Remaining in the United States after being terminated presents its own set of challenges. First is the 60-day grace period clock that starts from the time you lose your job. Second, if you cannot find another H-1B employer willing to submit a petition for you, you would need to find another visa category to change status.
One visa category that often comes to mind is the B-1/B-2 visa for business or tourism. Trying to change to visitor status to cover the period until you find a new job has its own set of difficulties. The first is that the government typically does not consider the visitor visa category as appropriate for persons seeking employment. Second is the processing time for USCIS to review, and hopefully, approve the application. It can take USCIS up to a year to review the application.
In the meantime, if you find an H-1B employer while your application is pending, you’re in this middle land of not being in status but having an application pending and now wanting to change status again. In these so-called “bridge” application or petition scenarios, USCIS often first requires adjudication of the intermediate application or petition before it will review the subsequent (H-1B here) petition. If USCIS denies the bridge application or petition, you still may need to leave the U.S. to get a new visa at the U.S. consulate before returning and resuming employment.
Even if you are fortunate enough to find a new H-1B employer right away, unless you want to wait several months for a decision on the new employer’s petition, you’ll need to work for the new employer while the petition is pending. USCIS suspended premium processing on March 20, 2020, which means employers and employees now can expect to wait two to nine months to find out whether USCIS will approve the petition. If yes, you can continue working. If USCIS denies the petition, you would need to stop working and may need to leave the country at that time. The benefit of premium processing, when available, is that your next H-1B employer can obtain the decision (hopefully approval, of course) before you leave your current job. That way, you have peace of mind and can avoid a surprise months later.
The new “public charge” rules that went into effect in 2020 require employers to certify whether sponsored employees, which includes H-1B workers, have received any public benefits, such as Supplemental Security Income, food stamps, or Section 8 housing assistance. If you have received any public benefits, you might not be eligible to change or extend your status in the United States.
Aside from how unemployment might affect your H-1B status, the public charge rule specifically stated that unemployment benefits are not “public benefits” and therefore would not be considered when determining whether a nonimmigrant (such as an H-1B worker) is eligible to extend or change status in the United States.
As you can see, losing your job in a pandemic situation is problematic. If you don’t find a job in perhaps two or three weeks, you can help yourself best by consulting a qualified immigration attorney to review what options may be available. There might not be any good options to remain in the United States in the near term, but you can arm yourself with knowledge to maintain your status now and for the future.