‍

 Understanding H-1B Maintenance of Status

You're working in the United States on H-1B status, but you're unsure whether certain employment situations maintain your valid status. Your employer wants to place you on unpaid leave. You're between projects with no assigned work. Your company is restructuring and your duties are changing. Do these situations jeopardize your H-1B status even though your I-94 hasn't expired?

H-1B maintenance of status compliance involves much more than simply having a valid petition approval and unexpired I-94. You must continuously work in the approved specialty occupation for your petitioning employer, follow all USCIS regulations governing H-1B employment, and avoid gaps or unauthorized activities that terminate status regardless of I-94 validity.

Concerned about potential status violations? Beyond Border evaluates your situation for avoiding H-1B status violations and helps you maintain compliant status.

What It Means to Maintain H-1B Status

Maintaining valid H-1B authorization requires understanding that H-1B status exists only while you actively engage in the approved employment. Several conditions must remain true throughout your stay.You must work for the petitioning employer who sponsored your H-1B. You cannot work for other companies unless they file separate H-1B petitions for you. Even affiliated companies under the same corporate parent require their own petitions if they're separate legal entities.

You must perform duties within the approved specialty occupation. The work you actually do must match the position description in your approved H-1B petition. Significant deviations from approved duties can terminate status even if your employer doesn't realize it.You must work at approved locations covered by valid Labor Condition Applications. Working at offices, client sites, or remote locations not covered by your LCA violates status maintenance requirements even temporarily.

You must maintain your nonimmigrant intent. Engaging in activities inconsistent with temporary worker status, like starting businesses or making statements suggesting you intend to remain permanently beyond your authorized period, can jeopardize status.Your authorized period hasn't expired. Even if everything else is perfect, your status ends on your I-94 expiration date unless you've filed timely extensions before expiration.

The Benching Problem and Wage Requirements

H-1B benching regulations consequences create serious compliance issues for consulting firms, staffing companies, and any employers who might leave H-1B workers without assigned duties between projects.Benching occurs when employers keep H-1B workers on their payroll without work assignments. The employer isn't paying them because they're not working, but they're not terminating employment either. This practice is completely prohibited for H-1B workers.

H-1B regulations require employers to pay beneficiaries the required wage whenever workers are in a nonproductive status due to employer decision or lack of work assignments. If you have no work because your employer hasn't found a client project for you, your employer must still pay your full salary.The only circumstances where employers don't owe wages are when beneficiaries are nonproductive for their own reasons. If you're on approved vacation, personal leave, or unable to work due to your own circumstances, employers don't owe wages for those periods.

Extended benching without pay terminates H-1B status. If your employer places you on unpaid bench status for weeks or months, you're no longer maintaining valid H-1B status even though your petition remains approved and your I-94 is unexpired.Some employers mistakenly believe they can stop paying H-1B workers when there's no work. This misunderstanding creates serious status violations for beneficiaries who may not realize they've fallen out of status until they apply for extensions or green cards.

Unpaid Leave and Extended Absences

Unpaid leave H-1B status impact depends on the nature, duration, and reason for leave. Not all unpaid time off terminates status, but extended unpaid absences create significant risks.Short unpaid leave consistent with company policy is generally acceptable. If your employer grants all employees occasional unpaid personal days and you take a few days, this shouldn't jeopardize status as long as it's reasonable and consistent with policy.

FMLA leave typically doesn't terminate H-1B status. Family and Medical Leave Act provisions allow unpaid leave for medical conditions, family care, and similar situations. Taking FMLA leave consistent with the law and company policy should preserve status.Disability leave supported by medical documentation is usually acceptable. If you're unable to work due to injury or illness and have medical certification, reasonable unpaid disability leave shouldn't terminate status.

Extended unpaid absences for personal reasons create problems. If you stop working for several weeks or months for reasons not covered by FMLA, disability, or other legitimate policies, you risk falling out of status.Leaving the country during unpaid leave may help preserve status. If you return to your home country during extended unpaid periods, you might maintain status better than remaining in the US not working, though this requires careful analysis.

‍

‍

Common Status Termination Triggers

What terminates H-1B status includes numerous situations beyond obvious triggers like petition expiration. Understanding these circumstances helps you recognize and prevent status loss.Employment termination immediately ends H-1B status with limited exceptions. When your employer fires you, lays you off, or you resign, your H-1B status ends. You have a 60-day grace period or until your I-94 expires, whichever is shorter, to find new employment or depart.

Voluntary resignation terminates status just like involuntary termination. Giving notice and leaving your job ends your H-1B status regardless of remaining I-94 validity. You cannot remain in the US as a tourist after resigning.Working for unauthorized employers destroys status. If you start working for a company that hasn't filed an H-1B petition for you, even part-time or as a contractor, you've violated status and may face serious immigration consequences.

Performing unauthorized duties creates violations. If your approved petition covers software development but your employer reassigns you to sales or marketing, you're working outside your approved specialty occupation violating status maintenance.Location violations occur when working outside LCA coverage. Spending even short periods working at offices or client sites not covered by valid LCAs creates technical status violations regardless of whether USCIS discovers them.

Recognizing When You've Fallen Out of Status

Avoiding H-1B status violations requires recognizing when status problems have occurred. Many beneficiaries don't realize they've lost status until serious consequences emerge.You've fallen out of status if you stopped working for your H-1B employer weeks or months ago without finding new employment. Extended unemployment terminates status even with valid I-94s.

You've violated status if you've been working for companies that didn't petition for you. Any unauthorized employment, even brief periods, creates violations that can destroy future immigration benefits.You may be out of status if your employer hasn't paid you for extended periods. If weeks or months passed without wages due to benching or lack of work assignments, you've likely lost status.

You've violated status if you've been performing duties substantially different from your approved petition for extended periods. One-off assignments outside your scope might be explained, but systematic unauthorized work creates serious problems.You're out of status if you remained in the US after your I-94 expired without filing timely extensions. This is the most obvious status violation, with serious consequences including lengthy bars to future entries.

‍

‍

Options for Fixing Compliance Gaps

Fixing H-1B compliance gaps depends on the nature and severity of violations. Some situations can be corrected while others require more drastic measures.Filing new H-1B petitions works if you're still within valid status. If you recognize potential problems before status formally ends, having new employers file petitions quickly can preserve your lawful presence and prevent serious violations.

Applying for reinstatement addresses certain technical violations. If you fell out of status due to circumstances beyond your control, were unaware of the violation, aren't deportable, and haven't repeatedly violated status, you might qualify for discretionary reinstatement.

Cap-exempt H-1B petitions offer solutions for some beneficiaries. If you're eligible for cap-exempt positions at universities, nonprofits, or government research organizations, new employers can file petitions quickly without lottery constraints.Leaving and reentering the US can restore status in some situations. If new employers file H-1B petitions while you're out of status, getting the petitions approved and then traveling abroad for visa stamping and new I-94s can restore your lawful presence.

Departure and reapplication from abroad is necessary for serious violations. If you've accumulated significant unlawful presence, worked without authorization for extended periods, or committed material violations, you may need to depart and go through consular processing.

Preventing Status Problems Proactively

H-1B maintenance of status compliance is easier to maintain than to fix after violations occur. Proactive approaches prevent problems that could derail your immigration future.Understand your petition terms thoroughly. Read your approval notice and petition documents carefully. Know what duties you're approved to perform, where you're authorized to work, and what conditions apply to your employment.

Maintain regular communication with your employer about immigration compliance. If your employer proposes changes to your duties, work location, or employment terms, discuss immigration implications before implementing changes.Keep detailed records of your employment history. Maintain paystubs, tax documents, employment letters, and other evidence proving continuous authorized employment. You'll need this documentation for future extensions and green card applications.

Address potential problems immediately when they arise. If your employer places you on unpaid status, proposes relocating you, or changes your duties significantly, consult immigration attorneys promptly before situations create violations.Monitor your petition and I-94 expiration dates carefully. Start extension processes at least six months before expiration. Don't wait until the last minute when unexpected delays could cause status gaps.

Frequently Asked Questions 

What does it mean to maintain H-1B status?

H-1B maintenance of status compliance requires continuously working in your approved specialty occupation for the petitioning employer at authorized locations covered by valid LCAs, receiving required wages, and avoiding gaps or unauthorized activities that terminate status regardless of whether your I-94 has expired or USCIS explicitly notifies you.

Can my employer stop paying me when there's no work?

No, H-1B benching regulations consequences require employers to pay required wages whenever H-1B workers are nonproductive due to employer decisions or lack of work assignments, with extended benching without pay terminating status even if the petition remains approved and the beneficiary's I-94 is unexpired.

Does unpaid leave affect my H-1B status?

Unpaid leave H-1B status impact depends on circumstances, with short leave consistent with company policy, FMLA leave, and documented disability leave generally acceptable, while extended unpaid absences for personal reasons potentially terminating status if they exceed reasonable bounds or employer policies don't support them.

What causes H-1B status to end?

What terminates H-1B status includes employment ending through termination or resignation, petition expiration, working for unauthorized employers, performing duties outside approved specialty occupation scope, working at locations not covered by LCAs, extended unpaid benching, or I-94 expiration without timely extensions.

How do I fix H-1B status violations?

Fixing H-1B compliance gaps options include filing new H-1B petitions if violations are minor and status remains technically valid, applying for discretionary reinstatement for certain technical violations, leaving and reentering after new petition approval to restore lawful presence, or departing and reapplying from abroad for serious violations.

‍