Strategies For U.S. Companies Navigating The Negative Impact Of The COVID-19 Pandemic On Nonimmigrant Workers In The H-1B, H-1B1, E-3, L-1, O-1, TN Or E-2 Categories
As a result of the COVID-19 pandemic, companies employing
workers in the H-1B, H-1B1, E-3, L-1, TN, or E-2 nonimmigrant
categories are faced with challenges when no longer able to provide
sufficient full-time work due to a sudden decline in business. Some
companies may be faced with the difficult decision of laying off or
terminating the employment of workers. How do these things impact
the immigration status of the foreign national? What options
or strategies are available to companies when trying to cut costs
at the same time trying to retain personnel? This memorandum
will provide various options and/or strategies U.S. companies may
pursue when navigating the negative impact of the COVID-19 pandemic
on its’ nonimmigrant worker labor force.
Nonimmigrant worker is still employed with the U.S. company,
but the U.S. company may no longer have full-time work available
for the nonimmigrant worker
Many U.S. companies impacted by the COVID-19 pandemic may have
some work for the foreign national, and/or a desire to try to
retain the foreign national through the duration of the COVID-19
pandemic and beyond. Here are some options for U.S. companies
confronted with this scenario:
Full-Time to Part-Time Employment: U.S
companies may file an amended petition with the U.S. Citizenship
and Immigration Services (USCIS) to change the foreign
national’s employment from full-time employment to part-time
employment. There is a filing fee that is required to be submitted
with the amended petition, and all of the same documentation that
accompanied the prior petition filing would need to be included
with the amended petition.
For H-1B, H-1B1, and E-3 workers, the U.S. company would be
required to submit a new Labor Condition Application (LCA) to the
U.S. Department of Labor (DOL) to document the part-time employment
and have that LCA certified before filing the amended H-1B petition
with the USCIS.
Nonproductive Status with Pay: U.S. companies
may have workers in non-productive status for a brief period of
time between assignments, provided the nonimmigrant worker
continues to be paid. Non-productive status is sometimes referred
to as ‘benching.” As long as the U.S. company
continues to pay the nonimmigrant worker during the non-productive
status, the nonimmigrant worker continues to maintain status in the
U.S.
For workers in the H-1B, E-3, H-1B1 categories, since there is
an LCA required to be submitted with the petition, the failure to
pay workers in these categories may result in the U.S. company
having to pay back wages to these workers. In addition, a
U.S. company that fails to pay workers in these categories may be
fined, as well as debarred from filing LCAs in the
future.
Paid Time Off: Another option U.S.
companies may utilize is to have the nonimmigrant worker take paid
time off (vacation time) in order to help the foreign national
maintain status. It will also help U.S. companies employing
workers in the H-1B, H-1B1, and E-3 categories comply with the
requirements under the LCA. Given that the COVID-19 pandemic
may last for several weeks or months, it is not likely the paid
time off option will provide a long-time solution. However,
depending on how much vacation time the foreign national has
accrued and the duration of the negative impact the COVID-19
pandemic may have on business, it may be an option for some U.S.
companies.
Leaves of Absence: Another option that may be
available is for the nonimmigrant worker to take an unpaid leave of
absence. However, in order for the leave of absence to be
bona fide, the leave of absence cannot be employer driven and/or
based on the absence of work. Giving birth, undergoing cancer
treatment, caring for a sick relative are bona fide reasons a
nonimmigrant worker may request a leave of absence. Likewise,
nonimmigrant workers may take a leave of absence if sick with
COVID-19, or to care for a family member ill with COVID-19. A leave
of absence may also be taken based on the need to care for a child,
because the nonimmigrant worker no longer has childcare, as a
result of the closure of the childcare facility due to a
state order closing of all nonessential businesses. Please
note that it is not likely that a leave of absence, based on a fear
of contracting COVID-19, would be a bona fide reason.
There is no time limit on the amount of time that a nonimmigrant
worker may request a leave of absence. All that is required
is that there be a continued expectation of employment at the
conclusion of the leave of absence. As long as the request is not
based on a lack of work, and there is a continued expectation of
employment at the conclusion of the leave of absence, the
nonimmigrant worker would be maintaining valid status during the
leave of absence. Please note that it is possible for the
nonimmigrant worker to request an extension of his or her leave of
absence depending on the facts of the case. Please also note
that the longer the leave of absence, the more challenging it may
be for the nonimmigrant worker to maintain valid status, depending
on the facts.
Foreign worker’s employment has been terminated by the U.S.
company due to a lack of work
60-Day Grace Period: Many nonimmigrant
workers laid-off and/or who have their employment terminated by the
U.S. employer may have a 60-day grace period from the date their
employment ceases to find a new U.S. employer to sponsor them for
employment in the U.S., or to change their status to another
nonimmigrant category (Examples: B-2 (Visitor), F-1
(Student), etc.)). Here is some additional information regarding
the 60-day grace period:
- The foreign national is considered to be in nonimmigrant statusduring the 60-day grace period, and may change status, seek new
employment, or make plans to depart the U.S. during the 60-day
grace period.
- The 60-day grace period is for consecutive days.
- The 60-day grace period may not be longer than the end date ofthe authorized validity period of their nonimmigrant status.
- The foreign national is not authorized to engage in employmentduring the 60-day grace period.
- The 60-day grace period does not apply, if a petition to extendnonimmigrant employment is denied or after expiration of the
authorized validity period of prior approved petition. The
60-day grace period is intended only to apply to foreign nationals
whose employment ends prior to the end of their approved
employment. It is not intended to apply after that
period.
- USCIS may eliminate or shorten the 60-day grace period on acase-by-case basis. Each case is assessed based on the
totality of the circumstances surrounding the cessation of
employment. Circumstances that may lead USCIS to make
discretionary determinations to shorten or eliminate the 60-day
grace period may include violations of status, unauthorized
employment during the 60-day grace period, fraud, criminal
convictions, or national security concerns. Given the global
health crisis that exists, it is likely the USCIS will apply the
60-day grace period where it is able and appropriate.
Change of Status Application: Foreign
nationals who have their employment terminated may try to change
their status to the B-2 (Visitor) category. The maximum
period that may be requested in the Application for a Change of
Status (Form I-539) filed with the U.S. Citizenship and Immigration
Services (USCIS) is six months. There is a filing fee of
$370.00 and a biometrics processing fee of $85.00 that is required
to be paid to USCIS. Dependent family members may also be
eligible to change their status to the B-2 category.
Besides the option of changing status to the B-2 category, some
nonimmigrant workers may be eligible to change their status to the
H-4, L-2, O-3 nonimmigrant dependent categories, if their spouse is
maintaining H-1B, L-1, or O-1 status. (Note: Depending on the
particular status held by the spouse, the nonimmigrant worker, may
be eligible for other types of dependent nonimmigrant
categories) When changing status to a dependent nonimmigrant
category, a Form I-539 application is required to be filed with the
USCIS. The same fees described above are applicable.
Evidence the spouse is maintaining valid H-1B, L-1, O-1, etc.
status is required to be included with the Form I-539
application.
Besides having the options of changing status to the B-2
category or other dependent nonimmigrant categories (H-4, L-2, O-3,
etc.), some nonimmigrant workers may be able to change their status
to the F-1 (Student) category. In order to be successful, the
foreign national will need to be accepted into an academic program
at a U.S. college or university. The foreign national must
enroll as a full-time student and must demonstrate he or she has
sufficient funds to support themselves while in F-1
status.
Change of Employer Petition: Foreign
nationals who have their employment terminated by a U.S. company
may try to find a new U.S. employer willing to sponsor them for
employment. However, there are specific requirements that
need to be met for the various nonimmigrant categories, and
considering the decline in the economy and high unemployment in the
U.S., currently, foreign nationals may find this challenging.
In order to have a U.S. employer sponsor the foreign national for
employment, a Petition for Nonimmigrant Worker (Form I-129) is
filed with USCIS. There are filing fees that are required to
be paid. If the foreign national was in H-1B status with a previous
U.S. company, and a new U.S. employer is willing to sponsoring the
foreign national for the H-1B category, the foreign national may
begin work as soon as the petition is received at USCIS. If
the new U.S. employer’s petition indicates the foreign national
is changing status to another nonimmigrant category, the foreign
national will need to wait for the petition to be approved before
beginning work.
F-1 OPT and STEM OPT Students (90 and 150 days of
unemployment): An F-1 student in his or her Optional
Practical Training (OPT) period that has their employment
terminated will need to report this to the Designated Student
Official (DSO) at their college or university. U.S. companies
employing an F-1 student in their STEM OPT period will need to
report changes in the employment of the F-1 student within 10 days
to the DSO. F-1 students in their initial one-year period of
OPT may have up to 90 days of unemployment before triggering a
maintenance of status issue. F-1 students in their two-year
STEM OPT period may have up to 150 days of unemployment before
triggering a maintenance of status issue. U.S. employers and F-1
students that have questions regarding how unemployment may impact
the foreign national and/or any OPT reporting obligations, may
contact the Student Exchange Visitor Program (SEVP) directly at
703-603-3400 or 1-800-892-4829 or e-mail SEVP at
sevp@ice.dhs.gov. In addition, the following website has a
lot of information for F-1 students navigating the impact of the
COVID-19 pandemic on their status: https://studyinthestates.dhs.gov/
Three Year Bar – Accrual of More than 180 Days of
Unlawful Presence, but Less than 1 Year: If a U.S.
employer needs to terminate the employment of a nonimmigrant worker
as a result of the COVID-19 pandemic, this may result in the
nonimmigrant worker to begin to accrue “unlawful
presence” in the U.S. at some point in the future.1
Foreign nationals and any dependent family members who accrue more
than 180 days of unlawful presence in the U.S., but less than 1
year, and depart the U.S., would be barred from re-entering the
U.S. for three years. Naturally, foreign nationals would want
to monitor the accrual of any unlawful presence and make sure to
depart the U.S. before accruing more than 180 days of unlawful
presence in order to avoid being barred for three years.
(Note: If the foreign national accrues more than 1 year of
unlawful presence and departs the U.S., the foreign national may be
barred for 10 years from entering the U.S.) In addition, while the
foreign national is accruing unlawful presence in the U.S., the
foreign national may be picked up by Immigration and Customer
Enforcement (ICE) and placed in removal proceedings at any
time. However, given the lack of resources of the federal
government, ICE gives priority to those foreign nationals who
possess a criminal record. Please note that even if a foreign
national does not accrue more than 180 days of unlawful presence,
an extensive accumulation of unlawful presence may negatively
impact the ability of the foreign national to receive a U.S. visa
in the future.
USCIS Discretion: It is also important to
note that the USCIS has discretion and has stated that there are
special situations that require the exercise of it. See the
following: https://www.uscis.gov/humanitarian/special-situations.
It is possible the USCIS may use its discretion during the COVID-19
pandemic in certain cases to provide relief to foreign nationals
negatively impacted by the pandemic. More information and/or
guidance may be issued by USCIS with respect to its use of
discretion during the COVID-19 pandemic in the coming days and/or
weeks. While the exercise of discretion by the USCIS is
something that may provide relief to foreign nationals who may have
maintenance of status issues caused by the COVID-19 pandemic, it
would not relieve employers of their wage liability in certain
cases.2
Footnotes
1 Note: Unlawful presence begins to accrue upon
expiration of the foreign nationals I-94 record, a determination is
made by the USCIS that the foreign national is not maintaining
lawful status in the U.S., or a determination made by a U.S.
immigration judge that the foreign national is not maintaining
lawful status in the U.S.
2 Note: U.S. employers that employ workers in the
H-1B, H-1B1, and E-3 nonimmigrant categories have strict wage
compliance requirements due to the attestations made in the Labor
Condition Application (LCA) required for these categories. In
order for the U.S. employer to cut off its wage liability, the U.S.
employer would need to take the following action: 1) Issue a
termination letter to the H-1B, H-1B1, or E-3 worker; 2) Offer to
pay the cost of one return plane ticket home for the worker; 3)
Send a request to the USCIS to withdraw the petition; and 4) Send a
request to the U.S. Department of Labor to request withdrawal of
the LCA.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.