November 2001 - H1B News
H1B layoff issues and Tips

Status of laid off H1B workers

If you are laid off or resigned from your current employer, you will lose your status immediately. It is advisable to leave the country as soon as possible to avoid legal issues. You will NOT be able to change your status to any other VISA because already you lost your valid VISA status.

Health Insurance coverage

If you are laid off, your employer will cancel your health insurance coverage. It is advisable to get the short term medical coverage, till you get the health insurance from other employer.

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 year w2 forms (if applicable). If you do NOT have recent pay stubs, then you may need to explain the reasons to 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 laidoff H1B worker will be considered out of status eventhough if he has valid H1B visa in his 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, as mentioned in the INS June 2001 Initial Policy Guidance Memo. Many INS Service Centers are currently applying a reasonable period of time standard, on a case-by-case basis, for favorable adjudication eventhough there is a gap between leaving an employer and filing a new H1B petition.

How long can I stay here after being laid off?

As we said earlier, It is advisable to leave the country as soon as possible to avoid the legal issues. You can be in US only if any your VISA application with INS is in process. 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 cannot be here without 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. If your employer refused to pay your salary, you can complain to the nearest INS office or Department of labor (DOL).

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 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 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 were deported, it is very difficult to get any US visa again.

What about new H1B VISA holders who are waiting for the calls from their US employer?

Sorry to say that it is NOT advisable to come to US at this time, Lots of experienced H1B holders are already leaving US because of NO jobs. You cannot survive here without JOB or without pay.

US IT market is keep going down, especially in the H1B contracting industry. As per our survey statistics, the market may be up by June-2002. We never know when and how the market will be having more number of openings. We will keep updating you with the latest market trends and economy changes.

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