Can H1B, H4 EAD Get Unemployment Benefits? Unpaid Leave, Furlough in coronavirus?

USCIS allows H1B, L1 short term leaves, furlough or bench with salary. H4, L2 EAD eligible for unemployment benefits until card validity. H1B 60-day lay-off grace available.

Anil Gupta
  By Anil Gupta    Updated  3 Jun, 20


H1B cannot apply for unemployment benefits. L1 cannot apply for unemployment insurance.

Can H4 EAD apply Unemployment insurance?

H4 and L2 EAD can apply for unemployment insurance from State but we recommend avoiding if you can. If you do decide to apply, do not apply it beyond your current EAD card’s validity.

H4 EAD is eligible for unemployment benefits and so is L2 EAD.

H4 EAD card sample
H4 EAD card sample

H1B employees can take an unpaid leave of absence and still stay in the US for the short term. H1B can be furloughed by the employer and is treated the same as ‘unpaid leave by employer’.

What does furlough mean? Furlough is unpaid leave in simple terms.

With Coronavirus business closures, many people are facing hardships and have asked this question repeatedly.

We know of a case where an employer sent an email to all employees to apply for federal benefits as they were sending all of them on forced unpaid leave due to Coronavirus. This does not mean that H1B is eligible for it. Do not make the mistake of applying for UDD even if your employer says so.

Note that H1B unpaid leave, bench time and lay off are all treated differently by USCIS.

H1B Status Maintenance

If your H1B payroll is not running while you continue to stay in the USA, you are considered ‘out of status‘.

Note that the H1B visa is given for special skills that are not readily found by your US employer. If they ask you to go on ‘unpaid leave of absence’, you will not be able to maintain your legal status in the USA.

The safest option, in this case, is to leave the US until your employer is ready to start your payroll.

Unemployment Benefit – Public Charge?

The unemployment insurance is funded by payroll taxes call FUTA and are paid by your employer. Since it is insurance, you are eligible to opt for it but only if you have an unrestricted work permit in the USA.

  • H1B and L1 have restricted work authorizations.
  • H4 EAD & L2 EAD have an unrestricted work permit.

Legally, you should be ready and available to join any US employer if you apply for UDD benefits. Whereas, your H1B visa status only allows you to stay and work for a specific employer. This simply means that you can’t apply for Unemployment benefits.

On the other hand, H4 and L2 EAD have unrestricted work authorization and can start working immediately, if a job is offered by state authority.

The second issue is that the Unemployment benefit will come back to hog you while filing your green card (i485) application. You will need to prove that you are not dependent on government help. The onus is on you to prove that you are not a public charge.

Green card public charge rule
Green card public charge rule

H1B Unpaid Leave Attorney Advice

Siskind Suser PC law firm says that H1B employees can request an unpaid leave as long as it is for a term (like 1 – 3 months) that’s allowed for other fellow employees too. Employers should also clearly notify this in writing to the employee and the leave policy should be posted on company’s portal.

Reddy n Neumann immigration attorney clarified:

  • Unemployment benefits: Cannot be used by legal visa workers as H1B approval is given based on continuous work assignments without any breaks for a specific Employer and location. If you claim unemployment insurance from state, you should be ready to join any Employer which state recommends, which is not possible with H1B.
  • Unpaid leave or Furlough: Employer cannot reduce the work hours or pay as it will risk paying below the prevailing wage.


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Nolo law has the opinion that an employer is obligated to keep running the H1B employee’s payroll if the unpaid leave has been mandated by the employer and not requested by the worker.

Nolo law confirmed in another article that USCIS has the policy of considering H1B unpaid leave as period of lawful status if it has been documented clearly in HR records.

Frequently Asked Questions

What are valid reasons for taking unpaid leave on H1B?

H-1b employees can take unpaid leave by their own choice and stay in the US for visiting places in the U.S., taking care of a sick relative, maternity leave, or medical leave for treatment of a condition.

Are H4 EAD eligible for unemployment benefits?

H4 EAD is eligible for unemployment benefits.

Will USCIS allow unpaid leave during Coronavirus?

USCIS has not said anything explicitly about the unpaid leave due to Coronavirus forced business closures.

It is possible that they allow it in the future with valid proofs.

What we recommend is to wait in the US for 60 days on unpaid leave. If your employer is not restarting your payroll after 60 days, we suggest to leave the US and return later.

Can H1B take unpaid maternity leave in the USA?

H1B is allowed to take unpaid maternity leave. The time will be counted as legal time if the leave term is as per the employer’s general leave policy.

Can H1B workers maintain legal status with unpaid paternity leave in the USA?

H1B workers can maintain legal status if the paternity leave is given to all employees as per employer policy.

This policy should be documented and should be sent as proof to USCIS with an H1B extension.

Can USCIS send RFE for unpaid leave during H1B extension?

USCIS can send RFE to prove the maintenance of H1B status. Normally, the pay stubs are used to prove your legal H1B status in the US.

You should keep all proof of your unpaid leave.

A letter from HR approving your ‘unpaid leave’ with specific terms and conditions should be kept by the employee. You can send these proofs in response to USCIS’s request for documents.

Note that the US embassy can also you to prove your legal leave by issuing form 221g at the time of visa stamping.

Can H1B employers not pay salary on Bench time?

H1B employers cannot stop your salary even if your project is over and you are currently on ‘bench’.

Bench time cannot be treated the same as ‘unpaid leave’ time.

H1B employer has to run your payroll and pay taxes to keep you in legal H1B status.

Most good IT consulting employers do pay you salary if there is a gap in on-boarding you to a new client project. If they cannot find a new project and do not want to keep paying, they would usually send you back to your home country.

Can I stay in the US if I take 2 or more months Sabbatical on H1B?

There is no clear guidance from USCIS for H1B sabbatical cases. My suggestion is to leave the US if you want any break longer than 2 months.

Once you are outside the US, you are safe as there is no H1B status.




Author

Anil Gupta
  By Anil Gupta           

Recent discussion on forum

  1. anonymous
    anonymous

    Hi @⁨Anil Gupta⁩

    I had attended a lawyer conference call to confirm if a H1B employee can take a personal leave to avoid furlough. Unfortunately, I didn’t get a chance to ask my question due to time out. I heard the lawyer telling a caller with furlough issue that a H1B employee cant take unpaid leave and will have to leave the country in 60 days.
    Does this sound correct ?
    I had read an article where it was mentioned to take an unpaid leave to avoid furlough.
    Please advice
    Thank You!


  2. anil_am22
    anil_am22

    H1B employer cannot stop payroll in any situation except when employee himself request an unpaid leave for short term with proofs.

    It is quite risky and difficult to prove even in this case where employee requests the unpaid leave.

    Normally nobody takes it as your extension will have severe questioning by USCIS.


  3. KUMAR01
    KUMAR01

    Thank You !!

    Does unpaid leave impact only during the H1B renewal ? Or can USCIS find out now and mark me out of status?I’m the only H1B employee in my company so they don’t know anything. HR researched something and the CEO said taking personal leave is the safest option for a short time because we will resume our work soon.


  4. anil_am22
    anil_am22

    Personal leave can be taken but it has to be well documented with specific reasons and as per the employer leave policy.

    The same leave policy should be documented and applicable for all other employees too.


  5. adhara
    adhara

    Hi @Anil.Gupta,

    I applied for the unemployment benefits before I read this forum. I am guessing this will be a problem. I was told by my employer to apply for the benefits, as we will be resuming work soon. I am currently on my H1B status. Do you think there will be a way around this ? Thank you.


  6. anil_am22
    anil_am22

    Just withdraw your application if you can as early as possible.


  7. robe
    robe

    According to this public rule:

    https://www.uscis.gov/policy-manual/volume-8-part-g-chapter-10

    Unemployment benefits are not considered a public charge, and would not affect during a green card application.


    Response:

    While the proposed rule included state and local and tribal cash benefits for income maintenance, DHS excluded state, local, and tribal non-cash benefits from consideration in the public charge inadmissibility determination because of the number of public benefits that exist and the administrative burden such a rule would have imposed on DHS and the state and local public benefit granting agencies. In addition, including all state and local benefits would add vagueness and confusion as to what public benefits would be considered. Consistent with the proposed rule, DHS will continue to exclude state, local, and tribal benefits that are not cash-benefits for these reasons. Further, DHS would not consider federal and state retirement, Social Security retirement benefits, Social Security Disability, postsecondary education, or unemployment benefits as public benefits under the public charge inadmissibility determination as these are considered to be earned benefits through the person’s employment and specific tax deductions.

    Direct link:


    And more information here:
    https://www.govinfo.gov/content/pkg/USCODE-2018-title8/html/USCODE-2018-title8-chap14-subchapI-sec1611.htm

    Can you please explain this in more clear detail why do you think Unemployment Benefits are considered a public charge? Do you have a direct link to any government agency explaining why this would affect your I485 application?


  8. robe
    robe

    I found the california unemployment insurance code, which states that if you are not a permanent resident, you cannot apply for benefits:

    Law section.

    But I have not found a place where unemployment benefits are considered a public charge.


  9. anil_am22
    anil_am22

    I have already explained with attorney references in the article. Please read.


  10. Vikas_ji
    Vikas_ji

    Hi Mr. @Anil.Gupta Thanks for the video. Do you have any updates on h1b visa holders who’ve already been laid off? Is there a better measure than hoping to find another job and file a visa transfer? TIA


  11. anil_am22
    anil_am22

    Hi @Vikas_ji

    There is no better option than finding a new H1B employer. Everything else is just a fall back option and only available if you have no other option.


  12. Vikas_ji
    Vikas_ji

    Makes sense. If you don’t mind, could you please share other measures, if possible. Finding another job seems nearly impossible given the market condition and growing visa uncertainties…


  13. anil_am22
    anil_am22

    Hi @Vikas_ji

    Read here:


  14. Jagriti_Pandayal
    Jagriti_Pandayal

    Hi ,
    i am on h4 ead working . My employer is giving me 3 days a week furlough for 4 weeks.
    Can i apply for Unemployment Insurance?Please suggest me what is best for me.


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