“I have an H-1B visa. I’ve had it for seven months, but I’m afraid that I’m going to be laid off because my company has hit hard times and will likely start cutting back. I’ve been looking for other jobs in my field but I haven’t had any luck. What are my options as far as unemployment benefits go? Can I collect them? Can I use the H-1B that I have to get another job? I know that the visa is owned by my current employer, but is it a big deal if I use it for another position? Is there anything else I can do?”
As an H-1B visa holder – H-1Bs are for skilled foreign employees working for U.S. employers, with the visa good for up to six years – you really aren’t entitled to unemployment insurance, and in fact you will be considered out of status the day after (if) your employment is terminated. Those without legal immigration status are not eligible to apply for unemployment.
The H-1B, as you say, was obtained for you from your current employer. The visa is employer-specific – in other words, you can only use it to work for the employer that acted as sponsor.
You may not be aware that the employer is obligated by law to notify the U.S. Citizenship and Immigration Service (USCIS) if an H-1B visa holder has been terminated. An employer can face penalties for not doing so, and in fact could technically be liable to pay the visa holder’s wages until the termination has been reported. Clearly, those are issues that no employer would want to face.
If an employer ends an H-1B visa holder’s job, the employer must pay “reasonable” transportation costs for the employee to leave the U.S. (If the visa holder has a spouse and children, the employer is not obligated to cover the travel costs for them.)
You definitely cannot use the H-1B visa that you have to obtain work from another employer. Finding another job is proving difficult, you say – but if you were able to secure another position, your new employer could apply for an H-1B visa transfer.
The transfer petition does not count against the 65,000 annual H-1B visa cap, and once the petition is submitted to USCIS you would be eligible to work for the new employer, provided that this process takes place while you’re still in your current job. An H-1B visa cannot be transferred after the visa holder is terminated from the original position.
Perhaps you can ask your employer for a clearer idea of your job status for the next few weeks/months. Having this knowledge will help you plan your next move if you wish to remain in the U.S.
You could change visa status from H-1B to another – the B visa would be the easiest option because it doesn’t require a sponsor – but again, this can only be done when you’re in status, and once your job is over you’re no longer considered to be legally in the U.S.
If your long-term plans are to stay in the U.S., you should speak to an immigration attorney who can help you plot a more precise plan of action.
Originally published in 2013.
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