What Happens When Foreign Workers Lose Their Jobs in the U.S.?

By David North on April 22, 2020

There are reports on foreign workers losing their jobs as a result of the sharp decline in the health of the economy, as we reported recently.

In some cases, the only reason that they are here in legal status is because they have a job in one of our foreign-worker schemes, such as in the H-1B program for skilled workers. So what happens to them when they lose the job that got them here in the first place? Do they leave the country?

The answer for most is "no," or at least, "not yet."

There are three reasons for this: 1) there are many alternative solutions available to these workers, notably the H-1Bs; 2) the government routinely does not go after such workers, as they are (understandably) low on the priority list for deportations; and 3) sometimes their home countries have (again understandably) barred flights from the United States.

Nevertheless, the Indian press pays close attention to these matters, such as this article by India's Economic Times. While no blanket program changes have yet to emerge on this point, much as the Indian media would like that to happen, there is in place a system whereby an H-1B visa holder who has lost his or her job can apply for an eight-month extension of that visa.

In addition, there are other USCIS provisions for extensions of status under unusual circumstances.

One alternative for an unemployed H-1B would be to convert to an H-4 (H-1B dependent) status if his or her spouse has an H-1B, a not uncommon situation; or the worker could go back to school (taking night or weekend courses) and become an F-1 student eligible for at least part-time legal work while getting that next degree. Some H-4s were granted the right to work by the Obama administration and various rumbles that the Trump administration will change that policy have not, or at least not yet, led to such a decision. (In fact, a regulation to discontinue the grant of work authorization was prepared by USCIS but has been bottled up at the White House for more than a year.)

We at CIS recently had an exchange of emails with a particularly well-credentialed foreign worker whose name we will not use. This person's situation is a good illustration of the numerous alternatives available to the better-educated of the foreign workers.

Our correspondent has a set of alternatives. She is from Latin America and has an American PhD. She is working on an education-related project for a major U.S. university as a post doc or a staff member. She is in one of the science, technology, engineering, and math fields (STEM) and currently is in her third year of STEM-OPT status.

The university wants to keep her employed and it (and I guess she) prefers to employ her as a J-1 exchange visitor. But moving her from the OPT to the J-1 program routinely means that an individual would need to return to their home country for a visa interview at an American embassy or consulate. The home country in this case is not accepting airline flights from the United States. So what should be done?

Though she prefers the J-1 route for continued legal employment in the United States, she has several options. Notably, the university could get her an H-1B appointment without regard for the ceiling on such visas, because universities can hire an unlimited number of H-1Bs. Or she could fly to an adjoining country and return to her homeland via land, but our consular officials are not doing many interviews these days. Or, without leaving the university and her job, she could sign up for a master's programs there and continue her project with the university with the university perhaps picking up the tuition for those courses. In this case she would be an OPT worker again.

Aliens with fewer credentials have fewer options.

The last two posts in this blog series will deal with the extent to which foreign workers who have lost their jobs can access American income-transfer programs.