Layoffs of H-1B Employees: Part-time H-1B a Viable Option

The current economic meltdown has resulted in massive layoffs, and a good number of persons laid off are foreign nationals on H-1B visas. H-1Bs are non-immigrant visas granted by the United States Citizenship and Immigration Services (USCIS) to foreign nationals to work in "specialty occupations" that require a minimum of US bachelor's degree or equivalent. Further, these foreign nationals are limited to work only for the petitioning employer, and such employment is subject to various restrictions including wage obligations by the employer. For this reason, when a person employed on H-1B status is laid off, he/she is essentially left with the limited options of finding another job right away or leaving the US.

The first option of finding another job right away would seem an uphill task in the current economic scene. If the person is able to find another H1B employer, that employer has to file an H1B petition immediately so that it can get approved without the USCIS raising questions about unlawful stay between two jobs. If this is done, then the person can work for the new employer without having to leave the US. Some adopt a slight variation of this option and take the risk of being unlawful in the US for a few weeks and find another job. In such cases, when the new employer files for H1B transfer, even if the case is approved, the person will have to go out of the country, get the new visa stamped and return to the US before they can start working for the new employer.

The other option of leaving the US is an unpleasant one for most people.

Since most US employers intending to layoff H1B employees have the intention to hire them back when the economy possibly turns around in, say, six to nine months, changing the H1B position to a part-time one in the interim period makes sense. This way, the employers can keep the H1B employees on payroll but at a lower salary, proportionate to reduced working hours. USCIS rules permit this, and all it takes is a USCIS approval of an amended H-1B petition. For such petitions, only the basic filing fee of $320 is payable if an extension of the validity period is not asked for.

Needless to say, the employers still have to meet all their legal obligations pertaining to the H-1B program. These include adhering to the posting requirements, paying wages at least equal to the prevailing wages, making sure that there is no differentiation of benefits between H-1B employees and US employees, maintaining appropriate documentation, etc.

Some employers ask the question whether they can file such amendment petitions changing the number of hours to a nominal five hours per week. We discourage this because USICS will most likely deny such a petition or bombard the employer with a Request for Evidence (RFE). The ability of the H-1B employee to support himself/herself (and dependents, if any) at such a drastically reduced wage level would be the most obvious question.

It would be more prudent to change the working hours to 15 to 20 per week, provided such reduced hours would pay the employees enough wages to support themselves (and their dependents, if any) in the US.

Disclaimer: The information in the above article is of a general nature only and should not be taken as legal advice. Always seek professional legal advice before proceeding with your case.

Copyright: The Law Offices of Morley J. Nair, Inc.

Morley J. Nair is the founder of The Law Offices of Morley J. Nair, located in Philadelphia, PA, practicing Immigration Law in all the 50 states. The firm has processed thousands of H-1Bs and hundreds of employment-based immigrant visas.
The firm websites are www.visaworks.com and www.h1bplanet.com.