Impact of H1B Revocations on Employees
Posted Mar 20, 2009
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We at the Murthy Law Firm sympathize greatly with everyone who is experiencing difficulties due to the economy. We know this is stressful for many, and particularly for immigrants whose status depends upon maintaining employment. H1B workers often make incorrect assumptions regarding the impact of an employer's revocation of the H1B petition. As was reported to MurthyDotCom and MurthyBulletin readers in our February 6, 2009 article, H1B Employee Termination: Employer Concerns, employers are required by law to revoke the H1B petitions for terminated workers. However, this revocation does not mean that the workers now become subject to the H1B cap (and lottery) for future H1B filings or that they are otherwise limited in their options to regain H1B status through new employment. Some common misconceptions regarding the impact of employer revocations of H1B petitions on beneficiaries are addressed here.
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H1B Revocation Confirms Job Termination
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The revocation of the H1B petition normally is simply the confirmation of the fact that the position has been terminated and that there is no longer that H1B position with the particular company. The employer generally notifies the H1B employee of the fact that there is no work assignment. The H1B employment should have been terminated before the employer reaches the point of revocation. It is time for the worker to move on to new employment, a new immigration status, or to consider other options, as there is no job with the employer who filed the original H1B petition.
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Employer Required to Pay Full Wages or Revoke
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As explained in earlier articles available on MurthyDotCom, H1B employers are not permitted to "bench" workers without continuing to pay them according to the terms of the employment. The U.S. Department of Labor enforces violations of the H1B Labor Condition Applications (LCAs). Under the law, employers cannot place H1B employees on unpaid status due to lack of work. Employers must pay H1B workers the salaries set out in their LCAs. If an employer cannot pay the wage, then the worker must be terminated and the H1B petition revoked.
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Benched Employees Need Evidence of Work
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Employees who are benched without pay may have serious issues regarding the maintenance of their immigration statuses. Typically, H1B workers use pay stubs to establish that they are maintaining status. Some alternate form of evidence of the work performed must be used if an employee has not been paid due to employer violation.
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Individuals Must Maintain Valid Nonimmigrant Status
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H1B workers often do not want their employers to revoke their H1B petitions, as they mistakenly believe the H1B petition alone is sufficient for them to maintain status. When there is no work or pay, the USCIS takes the position that an individual is not in status. If there is no work and no pay, it is time for the employee to make other arrangements. At some point, it should become clear to the individual that there is no job, even if s/he has not been formally terminated.
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H1B Revocation Does Not Require New H1B Quota Filing
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The revocation of an H1B petition for an individual who was already counted against the H1B quota does not subject the worker again to the H1B cap for new employment. As a general matter, individuals are counted against the cap only once in the six-year H1B period, plus any extensions of that period allowed under law. (Employees whose H1Bs were obtained by cap-exempt employers should seek the advice of an experienced attorney to learn their options.) Thus, contrary to popular belief, it is possible to obtain the approval of an H1B petition through a new employer, even after the H1B petition has been revoked by the prior employer. Some of the misunderstanding surrounding this issue seems to arise from the mistaken concept that H1B petitions are transferred between employers. Based upon this, it is assumed that workers can only "transfer" prior to the revocation of the H1B petition. This is simply not correct.
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Employee Options after H1B Revocation
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There are many potential options for keeping or regaining status, even if one's H1B petition has been revoked. Individuals faced with this situation should discuss legal strategies with a knowledgeable, experienced immigration attorney. 
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If a worker is either benched or terminated from H1B employment, it potentially is still possible to regain H1B status. This holds true even if the prior H1B petition is going to be revoked. A gap in status may mean that the individual will not be able to extend H1B status from within the United States. It may be necessary to travel abroad and, if needed, obtain an H1B visa stamp at the U.S. consulate. If there is a new employer, however, it is possible to obtain approval of a new H1B petition through that employer (no cap or lottery concern) even if the previous employer is not paying, or has revoked the H1B petition. It is strongly suggested that readers contact their attorneys to discuss the specifics of their own situations. If you would like a consultation with an attorney at the Murthy Law Firm, we are happy to discuss your options with you.
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More Risky to Remain With No Legal Status
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H1B employees have a number of options for changing employment or status, even when they have lost their jobs, are being benched, and/or the employer has revoked the H1B petition. We at the Murthy Law Firm find that H1B workers are often unaware of these options, and some simply remain as benched workers, hoping that work and pay eventually will come, thinking that they will somehow be okay as long as the H1B petition is not revoked. Such workers do have other options, but the longer one remains benched, the more significant the problems created for future H1B visas or for obtaining future permanent resident status (commonly known as the "green card").
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Conclusion
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H1B workers should focus on maintaining valid legal status, not on convincing their employers not to revoke their H1B petitions. H1B revocation is often legally appropriate and the safer course for both the employer and the employee. H1B workers must understand that their ability to hold or regain H1B status is not tied to the H1B petition revocation of a prior employer. Attorneys at the Murthy Law Firm are experienced and knowledgeable in the nuances of these issues. MurthyDotCom and MurthyBulletin readers are urged to seek proper legal advice on the complex and evolving matters of U.S. immigration law, rather than relying upon assumptions or the misinterpreted information from well-meaning friends.