The ongoing COVID-19 pandemic and its global economic repercussions have forced many employers to make difficult choices regarding their workforces. Businesses that employ workers who are not U.S. citizens must reckon with additional complications, as their decisions will affect both the employeesâ€™ livelihoods and their ability to remain in the United States.
Given these challenges, it is essential that companies consult an immigration attorney if they are considering personnel actions that would affect their foreign national employees, including layoffs, furloughs, and other terminations. (For more general information on the immigration consequences of workforce reductions, please see our prior H-1B Stinger article about this topic.)
Managing H-1B visas in these situations can be particularly complex, given the expansive network of underlying and inflexible terms and conditions. Employers that sponsor foreign nationals for U.S. employment through the H-1B visa program take on numerous exacting â€“ and all too often unforgiving â€“ obligations. And on the employeeâ€™s side of the relationship, those who are laid off, furloughed, or fired will need to find new employment as soon as possible or else leave the U.S. indefinitely per the equally exacting obligations that the program imposes upon them.
Chin & Curtis previously published a post (linked above) that examines an employerâ€™s obligations following the termination of an H-1B employee, and the substance of this piece still stands. As we noted, the 2006 case of Amtel Group of Florida, Inc. v. Yongmahapakorn essentially confirmed that the employerâ€™s obligations under the H-1B and the LCA do not cease until the employer completes the following steps:
- Notifying the Department of Homeland Security (DHS) that the employment relationship has been terminated; and
- Offering payment to the H-1B employee for return transportation to their home country.
The termination of an H-1B employee that occurs prior to the expiration of the employeeâ€™s valid H-1B status can only be â€śbona fideâ€ť if the employer completesÂ both of these two steps.
While the obligations outlined in our prior article still hold, there are two relevant updates that employers should be aware of in light of the current situation.
First, a new DHS regulation from 2017 institutionalized a â€śgrace periodâ€ť of up to 60 days, during which a terminated H-1B employee may remain in the United States to find new employment, secure a new immigration status, and/or wrap up their affairs and depart the US. This change, while obviously beneficial for employees, is also welcome on the employerâ€™s side, as it allows employers to execute terminations without putting their former H-1B employees in immediate legal peril.
Second, employers should consider the impact of the current climate on their protocols for offering payment for return transportation. For instance, how will travel restrictions, if any, affect the availability of return flights and how will airline service reductions impact the cost of the tickets? The applicable regulations leave a good deal of ambiguity around these and other questions concerning the offer of payment for return transportation costs, including whether an offer is sufficient as opposed to actual payment; whether the employer can set a limit to the cost amount; or whether setting a time limit for accepting the offer is appropriate. Absent any specific, regulatory guidance on these matters, employers are generally advised to use â€śreasonablenessâ€ť as their guiding principle (though, of course, what is â€śreasonableâ€ť will depend on the situation).
Employers should therefore be mindful of the circumstances surrounding a COVID-19-related termination, including issues arising out of international travel restrictionsâ€“ and should adjust their policies accordingly.
About the Author: Phil Curtis has practiced immigration law for more than 30 years and is a founder of Chin & Curtis, LLP. He has guided Chin & Curtis for the last seven years and now serves as Co- Managing Partner. With more than 40 professionals dedicated to serving the immigration needs of the business community, Chin & Curtis is New Englandâ€™s largest independent immigration law firm.