Question 1: I’m an H-1B employee and I have benched without pay, but I have found a new employer. I have no pay stubs. Can I “transfer” without leaving the U.S.?
Question 2: I’m an H-1B employee and I was benched without pay, but when I complained my employer fired me. I have found a new employer, but have no pay stubs. Can I “transfer” without leaving the U.S.?
Answer: The answer to both questions is maybe.
In this article, we explain a regulation that may enable you to change or extend your visa without leaving the United States even though you have not maintained your status .
H-1B “Transfers” and Maintenance of Status
To change or extend status (a.k.a. “transfer” as it is sometimes misnamed), the H-1B employee must have maintained status. In the context of an H-1B visa, maintaining status includes maintaining the employer-employee relationship with the H-1B employer sponsor.
If the H-1B employee has not maintained status, he cannot seek the extension of stay (e.g. change to another H-1B employer) or change of status (e.g. change from H-1B to H-4) from within the U.S. Rather, he would have to leave and if the application is approved, re-enter on a valid visa (whether a new visa needs to be obtained depends on the circumstances).
This requirement to maintain status is what underlies the USCIS requirement for pay stubs and other financial proof of having been paid. Those who have been benched or fired don’t have pay stubs.
There is a useful regulation, however, that may help these H-1B employees change their employers or change their status without leaving the United States.
Regulations give USCIS the discretion to approve extensions [8 CFR 214.1(c)(4)] and changes of status [8 CFR 248.1(b)] without requiring the employee to leave the United States when the visa holder has been out of status due to “extraordinary circumstances beyond the control of the applicant.”
What constitutes an “extraordinary circumstance” is not defined. An example that comes to mind, though, is a serious illness that keeps the person bed-ridden for a long period of time.
In previous guidance, USCIS has said a lay off is not automatically considered an “extraordinary circumstance” warranting a forgiveness of the failure to maintain status. Benching without pay or retaliatory termination, however, may qualify depending on the circumstances.
When reviewing requests for forgiveness due to “extraordinary circumstances,” some of the factors USCIS will consider include the reason the employee did not maintain status, for how long the employee was not maintaining status, and what the employee did about it (e.g. for a benched employee, did you complain about not being paid or say nothing?).
We must emphasize that there is no guarantee USCIS will apply this regulation to your case. This regulation gives USCIS the option, but not the requirement to forgive status problems. USCIS can decide your situation does not qualify and deny the extension or change of status.
Whether you are a good candidate for seeking relief under this regulation depends on the circumstances of your case. Because every person’s situation is unique, if you have not maintained status, even if you believe it was not your fault, you should immediately seek competent legal advice before taking any action to determine all the legal options, and the best strategy, for your particular case.
For more articles about your immigration options, please visit our blog’s main page at or the website of our law firm V.K. Vandaveer, PLLC site. For information about Legal (Attorney) Services for foreign nationals, please visit here.
In addition, please see our related article Will I Be Deported If I Complain Against My H-1B Employer? as well as other articles related to H-1B employee rights on our companion blog H-1B Legal Rights.