The COVID-19 health emergency has severely impacted U.S. employers who are considering layoffs, unpaid leave, work-from-home arrangements or reductions in hours for employees, including foreign nationals on work visas. For H-1B visa holders in particular, who are subject to additional compliance requirements specified in the Labor Condition Application (LCA) filed with their visa application, employers must understand the visa compliance requirements while counseling their employees on their options in order to reduce costs and legal liability while also retaining essential employees and workforce continuity whenever possible. With proper planning and compassion harm to the company’s workforce and competitiveness can be reduced and goodwill maintained at this difficult time when team spirit and morale are more important than ever.
Layoffs of H-1B Employees
Most foreign workers, who are not lawful permanent residents (“green card” holders) or other workers with unlimited work authorization not tied to their sponsoring employer, will lose their legal immigration status as soon as they lose their job with the employer who sponsored their work visa. Layoffs will also usually terminate eligibility for lawful permanent residence for employees with pending green card processes sponsored by their employer. However, most work visas (E-1, E-2, E-3, H1B, H1B1, L-1, O-1, TN) allow a 60 day grace period after the layoff during which the employee may change to another status, such as visitor or student status, or renew and extend their work visa if they find another employer to sponsor them, depending on the visa type. Generally speaking, H-1B workers may change employer sponsors within this 60-day period without having to leave the U.S., if their new employer files an H-1B application before the 60-day grace period expires. They may begin working for the new employer upon the filing of the petition. Other visa categories may allow less flexibility. For example, the L-1 visa is for managers or highly specialized workers who have worked for a foreign affiliate of their U.S. sponsoring company, and therefore generally cannot be “transferred” to another employer. A pending green card process also generally cannot be “transferred” to a new U.S. employer, unless it has reached an advanced stage in the process.
Note that for employees whose visa includes a Labor Condition Application (LCA) that guarantees certain wages and working conditions, including workers on H-1B visas, termination must include the following steps to be valid: the employee must be notified of the termination, the immigration service must be notified of the termination, and the employee must be offered payment for transportation home. If these steps are not followed the termination may not be considered bona fide and the employer may be liable for back pay.
Unpaid Leave and Wage Obligations for H-1B Workers
Generally speaking, as noted above, most foreign employees on work visas, including H-1B workers, lose their legal status in the United States upon termination of employment by the sponsoring employer. Employees with work visas may take unpaid leave in specific situations, if it is their decision and permitted under applicable laws. However, H-1B workers who are subject to the LCA wage requirements mentioned above, may not be placed on unpaid leave (furloughed) by the employer due to a lack of work. This is called “benching” and is specifically prohibited for H-1B workers. But, the H-1B employees may choose to take unpaid leave at their request for reasons unrelated to the employment (family leave, illness, injury, maternity leave) if such unpaid leave is permitted pursuant to the employer’s benefit plan and applicable laws (FMLA, Americans with Disabilities Act).
H-1B Employees Working from Home
During the current health crisis employers are often requiring their employees to work from home. For those visa types which are subject to LCA requirements, such as H-1B workers, the employer must continue to comply with the LCA wage and notice requirements for the work location. If H-1B workers continue to work within the same metropolitan area as specified in the original H-1B petition and LCA, generally no new LCA or H-1B application is needed if the LCA is reposted at the home office location according to the notice regulations. However, if the new work location is outside normal commuting distance and the change in location lasts more than 30 days, generally speaking a new LCA and an amended H-1B petition may need to be filed with the U.S. immigration service (USCIS) for the new work location.
Unemployment insurance and H-1B Workers
Unemployment insurance is a benefit that is administered by the states and generally requires that the unemployed individual be immediately willing and available to work. Generally speaking, as explained above, foreign nationals usually must have an employer sponsor them for a work visa, such as an H-1B, first before they can obtain work authorization, they are generally therefore not considered immediately eligible and available to work. Though certain states (such as California) are implementing policies to make unemployment benefits more accessible during the COVID-19 crisis, this means generally H-1B workers that have been laid off are not eligible for unemployment benefits as they are not available to work. Furthermore, as explained above, H-1B workers are also only given a 60-day grace period during which they may stay in the U.S. after a layoff, unless they timely apply to change status or renew and extend their H-1B status.
Reductions in Wages and Hours via Visa Amendments
For employees in visa categories subject to LCA wage requirements, such as H-1B workers, the employer cannot pay the worker less than specified in the LCA and in the corresponding visa petition (form I-129). This means that if the employee will receive a pay cut that lowers the wage below the wage in the LCA, an amended petition may need to be filed with the U.S. immigration service (USCIS) and a new LCA posted at the work location. This also applies if the employer wants to reduce the hours of the H-1B worker further than permitted by the LCA by changing a full-time employee to part-time. Note the LCA regulations also forbid offering less favorable wages or benefits to H-1B workers than to U.S. workers in comparable positions if this will hurt their working conditions.
Managing and Planning for Layoffs for H-1B workers to Reduce Disruption and Liability
There are many things employers can do to help reduce disruption and liability and to preserve the continuity of their workforce. Remember, if the employer has many H-1B visa employees, layoffs and reorganizations may affect whether the employer is considered H-1B dependent, affecting compliance obligations, and this calculation should be made in advance. H-1B visa dependent employers are subject to onerous compliance requirements, so dependency should be avoided. When planning a layoff, give foreign employees as much notice as possible and consider offering affected employees free consultations with an immigration attorney, as this may maintain goodwill and reduce costs if the employees can stay in the U.S. instead of having the employer pay for their return to the home country. Explore other working arrangements that may allow the employees to stay in legal status or avoid being laid off. Employers may want to consider transferring employees abroad, as H-1B visa and LCA requirements do not apply to employees outside the U.S. Be familiar with the employees’ immigration history and whether they have other immigration processes pending, such as a green card application, that may be affected by layoffs. By discussing the employee’s situation and all options with a lawyer the employer may be able to improve the employees’ immigration situation and avoid disruption and costs for both employer and employee.
Learn more about the relevant immigration legal issues by contacting the author Matthew Kolodziej.
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