Can H1B, H4 EAD Get Unemployment Benefits? (Unpaid Leave, Furlough)
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.
H1B cannot apply for unemployment benefits. L1 cannot apply for unemployment insurance. You should not claim the insurance benefits under the federal COVID relief bill as you do not have an open work permit.
Can H4 EAD apply Unemployment insurance?
- H4 and L2 EAD can apply for unemployment insurance from State but we recommend avoiding it 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.
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.
This article will discuss:
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 an ‘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 is 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 unrestricted work permits.
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.
H1B Unpaid Leave Attorney Advice
Siskind Susser 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 the 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 the 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 a period of lawful status if it has been documented clearly in HR records.
Can i485 EAD Claim Unemployment Benefits?
If you have an approved i-485 EAD and are using it to work in the USA, you can claim the unemployment insurance benefits as per the COVID relief bills.
Many people filed their EB2 to EB3 downgrades recently after the EB3 dates moved ahead aggressively in USCIS visa bulletins. If you plan to use i485 EAD, you can claim the insurance since you have an open work permit.
But, a word of caution: We suggest not claiming unemployment if you plan to go back to H1B or L status soon as you do not expect your dates to get current in the final action chart soon.
FAQ
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.
H4 EAD is eligible for unemployment benefits.
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 leaving the US and return later.
H1B is allowed to take unpaid maternity leave. The time will be counted as legal time if the vacation term is as per the employer’s general leave policy.
H1B workers can maintain legal status if 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.
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 prove your legal leave by issuing form 221g at the time of visa stamping.
H1B employers cannot stop your salary even if your project is over and you are currently on the ‘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 a 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.
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.
