Updated: May 5, 2020
As the world works to stall the spread of the coronavirus, our economies are getting stifled by the lack of operational movement. While employers are finding novel ways to keep velocity and enthusiasm going, some companies are having to make tough decisions to furlough or layoff their employees. Foreign national employees and their employers have to deal with an additional layer of complexity on top of an already complex situation. Below is our attempt to assist employers and their foreign national employees as they face tough decisions around employment.
H-1B Furlough / non-productive status
An employee placed on furlough status must be paid at least the required wage (as mentioned in the LCA) for the duration of the furlough period. Reducing the amount paid to the H-1B worker might result in a violation of the employer's obligation under the LCA. Therefore, unpaid leave is not an option for foreign national employees.
H-1B reduced hours / part-time employment
An employer can move the foreign national employee to the part-time status. This will be considered a material change and so before the shift, the employer is required to file both an amended LCA and an H-1B petition. Employers should consider talking to their immigration counsel before making the decision. The whole process is estimated to take 2-3 weeks and the employee could start working in the part-time role on the receipt notice.
Employer obligations to foreign national employees
Following termination of employment of an H-1B employee, the employer has the these obligations:
Withdraw the approval of the visa with USCIS
Withdraw the approved LCA with Department of Labor (DOL)
Compensate for the H-1B worker for return transportation to their home country
Failing to meet these conditions within a reasonable time may result in the employer owing back wages and additional compensation to the employee.
Consider giving your foreign national employees 60-days to look for another job before withdrawing the visa.
Steps for laid-off / terminated H-1B employees
The legal status of an H-1B employee is still valid for the duration of his/her visa. The employee should, however, make a show of faith effort to stay in the US.
If the current H-1B visa is not revoked then the foreign national employee has a 60-day grace period to find a new petitioner (employer) and file for a Change of Employer H-1B petition. They can start working for the new employer on the issuance of receipt notice.
If the foreign national employee is unable to find a new employer within the 60-day time frame, they could file an I-539 (Change of Status to B-1/B-2 visa). When filing the I-539, it's a good practice to try and add as much information and evidence to establish why they are extending their stay in the US, in order to be granted the maximum amount (6 months) of time allowed on the visitor visa.
It is important to keep in mind that the processing times with USCIS for filing applications are also impacted because of COVID-19. So, if the application remains pending past the expiration of 60-day period, it may be advised for the foreign national employee to exit the US in order to avoid overstaying their status. Please consult an immigration counsel to plan appropriate steps.
The National Law Review
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a WayLit-affiliated attorney or another qualified professional.