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The H-1B Termination “Stinger” in the Era of COVID-19: What Employers Need to Know

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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 employees’ 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 – and all too often unforgiving – obligations.  And on the employee’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 employer’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 employer’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 employee’s valid H-1B status can only be “bona fide” if the employer completes 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 “grace period” 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 employer’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 “reasonableness” as their guiding principle (though, of course, what is “reasonable” 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 restrictions– 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 England’s largest independent immigration law firm.


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How Does the Fall of DOMA Impact the FMLA and Other Employee Benefits?

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Jeff NowakUnless you’ve been securely wedged under a rock over the past 24 hours, you know that the U.S. Supreme Court has declared unconstitutional the Defense of Marriage Act (DOMA), which had established a federal definition of marriage as a legal union only between one man and one woman.

Yesterday, as Justice Anthony Kennedy read the opinion of the Court in U.S. v. Windsor, I can only imagine that his thoughts were consumed completely by the manner in which the extinction of DOMA would impact the future of the Family and Medical Leave Act. Right?

But let’s not leave this to chance.  In the unlikely event that Justice Kennedy (and the rest of the Court’s majority) didn’t fully appreciate how the FMLA might be impacted, we’ve got the Court’s back, as we discuss the issue more fully below:

How FMLA is Impacted after the Fall of DOMA

As we know, the FMLA allows otherwise eligible employees to take leave to care for a family member with a serious health condition.  “Family member” includes the employee’s spouse which, under the FMLA regulations, is defined as:

a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.  29 C.F.R. 825.102

Initially, this seems to suggest that the DOL would look to state law to define “spouse.”  Not so fast. According to a 1998 Department of Labor opinion letter, the DOL acknowledged that the FMLA was bound by DOMA’s definition that “spouse” could only be a person of the opposite sex who is a husband or wife.  Thus, the DOL has taken the position that only DOMA’s definitions could be recognized for FMLA leave purposes.  As result, FMLA leave has not been made available to same-sex spouses.

That changed yesterday, at least in part.

What’s Clear about FMLA After the Court’s Ruling

In striking down a significant part of DOMA, the Supreme Court cleared the way for each state to decide its own definition of “spouse.”  Thus, if an employee is married to a same-sex partner and also lives in a state that recognizes same-sex marriage, the employee will be entitled to take FMLA leave to care for his/her spouse who is suffering from a serious health condition, for military caregiver leave, or to take leave for a qualifying exigency when a same-sex spouse called to active duty in a foreign country in the military.

What’s Unclear about FMLA After the Court’s Ruling

But what about employees who live in a state that does not recognize same-sex marriage?  Are they entitled to FMLA leave to care for their spouse?

As an initial matter, the regulations look to the employee’s “place of domicile” (state of primary residence) to determine whether a person is a spouse for purposes of FMLA.  Therefore, even if the employee formerly lived or was married in a state that recognized the same-sex marriage, he/she is unlikely to be considered a spouse in the “new” state for purposes of FMLA if the state does not recognize the marriage.  This is no small issue, since 30+ states currently do not recognize same-sex marriage and some don’t go all the way (e.g., Illinois, which recognizes same-sex unions, not marriages).

Surely, some might argue that the United States Constitution requires other states to recognize the marriage; however, this issue is far from settled.  My friend and Indiana University Maurer School of Law professor Steve Sanders writes a compelling article for SCOTUSblog contending that an individual married in one state maintains a “significant liberty interest” under the 14th Amendment’s Due Process Clause as to the ongoing existence of the marriage.

Here, employers clearly need some help from the DOL.  Might the DOL draft regulations on how employers administer the FMLA in situations where the employee’s spouse is not recognized under state law?  If so, we could see the DOL give life to concepts such as a “State of Celebration” rule, in which a spousal status is determined based on the law of the State where the employee got married.

Without more guidance, it still is too early to tell where this question is heading.  Nevertheless, the employer community looks forward to helping shape these rules.

Other Key Benefits Affected by the DOMA Decision

FMLA is not the only federal law impacted by the fall of DOMA.  If federal regulations follow through, some of the notable federal laws and benefits impacted may include:

  • Taxes: Same-sex spouses likely will share many federal benefits and be able to manage tax liability in a way that opposite sex spouses typically do.  For instance, an inheritance, which was taxed under DOMA, will no longer be taxed for a same sex spouse (this was the factual scenario at issue in the decision). Income taxes, payroll taxes, health insurance benefits, and tax reporting may also be impacted.
  • Affordable Care Act and COBRANPR reports that the Court’s decision will impact how the Affordable Care Act (affectionately referred to as Obamacare) is carried out, though many details remain unclear. Moreover, same-sex spouses may be eligible for continuation of health insurance benefits (COBRA) even though the spouse may lose his/her job.
  • Employee benefits: Same-sex spouses likely will be treated equally when it comes to employee benefits, including a 401(k) plan.
  • Social security benefits: The Court’s decision also paves the way for social security survivor benefits to continue onto a legally married same-sex partner.
  • Citizenship:  According to NBC News, some 28,000 same-sex spouses who are American citizens will now be able to sponsor their non-citizen spouses for U.S. visas and can qualify for immigration measures toward citizenship.

For future updates on the impact of DOMA on FMLA and employee benefits generally, feel free to follow me on Twitter or Linkedin.  I’ll be posting more there.  You also can subscribe to this FMLA Insights blog on the right hand side of this page.  Just enter your address and I’ll email you my updates directly.

This article was originally printed on FMLA Insights on June 27, 2013.  Reprinted with permission.

About the Author:  Jeff Nowak is a management side attorney at Franczek Radelet P.C. and author of the FMLA Insights blog.


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