H-1B, E-1/E-2, O-1s, P-1s, L-1s, TNs
Options After Unemployment
Last week we sent out a newsletter about what types of work-authorized non-immigrants may claim unemployment insurance benefits.
This email is specifically for those concerned about work visa holders who were sponsored by an employer. This is a high-level general overview on these questions:
- What happens with these workers who now have to work from home?
- What happens if their employment is terminated?
- If they are not employed, are they eligible for unemployment insurance benefits?
The most common visa types we handle are H-1B, E-1/E-2, O-1s, P-1s, L-1s, and TNs. This message may apply to others too. Please check with your attorney if you have a visa type not mentioned here, or call us for a consultation to discuss your situation in detail.
Changed Work Conditions
Those in H-1B, E-1/E-2, O-1s, P-1s, L-1s, and TNs visa status were petitioned for by a specific employer. Their work authorization is, therefore, restricted to employment for only that
. In some cases, the employment is further restricted to a specific
. In the case of an H-1B worker, for example, his/her work authorization is for a specific
as well. For example, we may have told USCIS that a software engineer will be working for Apple in Cupertino, CA. But what if now, due to the international pandemic and local and state shelter in place orders, the worker must work from home. The work location has now therefore changed. For an H-1B, depending on where that home is located, additional legal work may be required, to inform the Dept of Labor (through a new labor condition application) and/or USCIS (through a new/amended petition). Please check with your immigration attorney before making a change to your employee's work situation. Or contact us for a consultation to discuss options available for the visa type held by your employee.
Because the employer may be experiencing revenue loss, it may need to terminate employees. Some things to consider when an employer does this for a non-immigrant visa holder it petition/sponsored: 1) the employee is no longer in status upon termination, because their lawful presence in the US was tied to the approval by USCIS to work for that employer. If that person is now terminated, he/she loses that visa status. 2) the employee has 60 days of grace period (in some cases, 30 days), to file for an extension or change of status (provided he/she is independently eligible) or depart the US.
One of the requirements for unemployment insurance benefits is being ready and willing to work immediately. Because those who have work visas that depended on an employer petition, these workers may only work for that employer/petitioner. Hence, these workers are not ready and willing to work immediately (they may subjectively be, but they are essentially not work authorized once terminated by their petitioning employer). Therefore, they are not eligible for unemployment insurance benefits.
Call us for a consultation
Immigration laws were already complex and now more so with so many real-life situations not previously experienced or contemplated. While in the past, the 60 days grace period may have been sufficient to find another job and be petitioned by a new employer, the worker is now unlikely to find new employment. We hope this has raised some awareness of what a non-immigrant worker faces when the job is terminated, even if they had a visa. Please connect with us to discuss any specific situation. We can be reached at 408-740-3474. We are open M-F 8 am to 6 pm (extended hours) and are taking consultations by phone until further notice.
Stay home and stay safe, everyone!
Your Team at Yew Immigration Law Group a P.C.