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Layoffs have high stakes for foreign nationals and their employers

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As society reacts to the spread of COVID-19, businesses are making difficult decisions. Despite the government’s interventions to encourage continuity in the workforce, unemployment is at historic rates and still rising.

This creates high stakes for employers of foreign nationals. The inflexible regulatory scheme governing such employment did not anticipate COVID-19.  It’s important to approach layoffs, hours reductions, and furloughs with a concrete plan: the impact on foreign workers must be taken into account before your company takes action.

Temporary Furloughs and Reductions in Hours Worked

The H-1 and E-3 visa categories require the filing of a Labor Condition Application (LCA) with the Department of Labor and are governed by DOL wage regulations.  An employer must pay these employees the greater of (1) the actual wage rate paid by the employer to all other individuals with similar experience and qualifications for the specific job, or (2) the prevailing wage for the occupational classification in the geographic area of intended employment.  This required wage must be paid, even if the employee is not performing work and is in a nonproductive status.  The temporary furlough of such an employee would therefore lead immediately to a violation of the LCA and a potential claim by the employee against the company.  Reductions in hours worked could also lead to LCA violations where the LCA was based on full-time employment.

There is no easy way out of this problem.  Foreign national employees may not be treated better than U.S. workers, so exempting them from such measures is not an option.  An employer’s only choice may be to amend an H-1B petition to reflect the change in working conditions, which is expensive and cumbersome, or to terminate the foreign national’s employment outright.

This situation is much more flexible for foreign workers not in H-1B, H-1B1 or E-3 status.  Such employees may generally be treated the same as U.S. workers without the need to amend an underlying visa petition.

Permanent Layoffs

Immigration regulations require employers of individuals in the H-1, L-1 and O-1 visa categories to immediately notify USCIS of material changes in the terms and conditions of employment.  What constitutes a material change is not always clear, but termination of employment is plainly material.  Written notice to USCIS would be sufficient for all except H-1B employees.

Employers of terminated H-1B employees – whether through layoff or otherwise — must notify USCIS immediately by withdrawing the H-1B petition.  The employer must also offer to repatriate the employee — pay the cost of the employee’s trip home if the employee chooses to depart the U.S.

F-1/STEM OPT Issues

There are also certain obligations for employers of F-1 nonimmigrant students who are employed pursuant to STEM OPT work authorization.  The STEM OPT period is governed by the Form I-983 training plan, which contains an employer certification.  Among other things, the Form I-983 includes the student’s salary and the agreed-upon number of hours worked per week.  The employer is responsible for notifying the student’s Designated School Official (DSO) regarding any material change to the training plan, including any reduction in compensation or any significant decrease in hours worked per week.  The employer also must notify the DSO within five business days of the termination of the student during the authorized STEM OPT period.

Permanent Residency Issues

If the company has filed an immigrant petition, or I-140, or an employee who is laid off, the employer should withdraw the I-140 petition.  However, the employee may be able to join a new employer and maintain the benefit of the prior approved I-140 petition and the established priority date, so long as the I-140 petition has been approved for at least 180 days.

Layoffs may affect not only the individual employee(s) laid off, but they can also have a significant effect on the green card process for other employees as well.  If the company has had a layoff within the last six months in the area of intended employment of the PERM job or a related job, the employer may not be able to file the PERM application.  This may delay the filing of PERM applications for employees, and may prevent the employer from sponsoring an employee for a green card altogether if the employee does not have sufficient time remaining in their nonimmigrant status.

In this tumultuous time, if your business is being forced to consider layoffs or if you are a foreign national employee who has been recently laid off, be sure to speak with an immigration attorney that is well versed in the nuances of both the regulations and these unusual circumstances.

Printed with permission.

About the Author: Leslie Ditrani is Co-Managing Partner of Chin & Curtis, LLP and has been practicing immigration law for more than 25 years. Working closely with employers to hire and retain talent, she and the firm represent a wide range of enterprises from start-ups and entrepreneurs to large, multi-national businesses. Leslie is known for her broad expertise in business and family immigration matters, and her dedication to finding creative and effective solutions.


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7 tips to get through a coronavirus furlough

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Matthew Goldberg

It doesn’t matter the industry or the occupation, a furlough can happen to just about anyone.

That’s why it’s important for those dealing with the financial difficulties of a recent coronavirus-driven furlough to know there are a number of ways to try and stay afloat when you’re not receiving your normal pay.

Even if you’re lucky enough to still have your job today, it may be in your best interest to take some proactive steps to plan ahead in the event a furlough, or lay off, impacts you in the near future. Facing the economic uncertainties of a pandemic, it’s entirely possible that you could potentially be the victim of an employment interruption at some point.

Here are seven tips for surviving a furlough in these tough times.

1. See if you’re eligible for unemployment insurance

Take advantage of benefits available through the CARES Act or unemployment insurance benefits. The U.S. Department of Labor has answers to some of your eligibility questions.

Pandemic Unemployment Assistance (PUA) may be an option for those who wouldn’t normally qualify for regular unemployment compensation.

“The Federal supplement to the state unemployment benefits now makes a big difference,” says Mark Meredith, certified financial planner at Meredith Wealth Planning in Maryville, Illinois.

States give an additional $600 weekly payment to eligible individuals receiving other benefits under Federal Pandemic Unemployment Compensation (FPUC).

2. Your bank or lender may provide short-term savings options

Many banks are waiving certain fees or allowing borrowers to defer making payments.

For homeowners, a monthly mortgage payment is usually one of the highest expenses. A mortgage forbearance takes a big expense, temporarily, off of a person’s plate if they’re eligible.

“This could be a good way that you could potentially reduce your monthly outflow towards living costs,” says Amar Shah, CFA, certified financial planner and founder of Client First Capital in San Diego.

Those with federal student loans can take advantage of the CARES Act, which automatically stops student loan payments until Sept. 30. During this time interest is being temporarily set at 0 percent.

Unfortunately, private student loans aren’t covered under the CARES Act.

Bankrate is tracking how many of the largest banks are helping their customers. See if there’s a way that your bank can help you during this emergency.

3. Set a furlough budget

Cut back on spending now to either survive your furlough or prepare for one. Budgeting is the best way to see where your money is being spent.

“Take a close look at your monthly budget,” says Greg McBride, CFA, Bankrate chief financial analyst. “Identify which items you could cut back or eliminate right now. And identify those items you could cut back or eliminate if conditions get even worse.”

Making meals at home, instead of getting delivery or takeout can save you money. Also, you may be able to cut costs by analyzing your subscription services, gym memberships and other expenses that are on autopilot.

Also, reevaluate your fixed expenses. It’s not uncommon to switch auto insurance and homeowners insurance providers and save $500-$1,000 a year, Meredith says. Your cell phone bill might be another area of opportunity.

“I think people, when they’re so ingrained in their work lives they rarely have the time or desire to look into it very deeply,” Meredith says.

4. Balance transfer credit cards can buy time

This emergency can be a little easier to handle if you have more time. More time can help you save, cut your budget and hopefully find a steady income. There are a few lending tools that can do this.

Consider using a balance transfer credit card, a 0 percent introductory offer or a balance transfer offer on an existing credit card.

One caveat is that part of a new credit card application will likely be based on your income. So those who still are employed may be in a better position to take advantage of a low or no-interest period. Some banks may charge an upfront fee of 3 to 5 percent to take part in these offers. If you don’t have the best credit, a personal loan is another option for getting the funds you need.

Be aware of what you’re charging on this credit card and have a plan for how to pay it back — preferably before the favorable interest period ends.

“Limit it to essential spending only,” McBride says.

Keep in mind, losing your paycheck is an emergency.

“So, somebody who’s already been laid off, this is a time when it’s OK to make the minimum payment on your credit card,” McBride says.

5. Try to avoid touching your retirement savings

You may qualify to take a penalty-free withdrawal from an eligible retirement plan, such as a 401(k). But these withdrawals should only be an absolute last resort. Some coronavirus-related withdrawals won’t have a 10 percent early withdrawal penalty if they’re made in 2020. But keep in mind that you’ll still have to pay taxes on these withdrawals, though you may be able to spread these payments out. Also, you could use a Roth IRA as an emergency option if other options aren’t available. Contributions from a Roth IRA can be withdrawn at any time.

A $10,000 withdrawal from your retirement account today could be $57,000 in lost retirement savings 30 years from now, McBride says. That’s based on a six percent annual rate of return.

Annual contribution limits and the fact that you might never replenish these retirement funds are also reasons to avoid this route if possible. A per

6. Find saving opportunities

Try to keep adding to your emergency fund, if you have one, and are still working.

“Do that with any stimulus check you may be receiving, your tax refund and with the discretionary spending you’re not doing,” McBride says. “It’s the money that’s not being spent in restaurants, at movie theaters or ball games — is money that you can be putting into savings to pad your cushion.”

Look for other ways to try and replace income, if necessary. It’s OK to dip into your emergency savings if you’re furloughed right now, since this is an emergency.

Even if you entered this furlough without an emergency fund, hopefully spending cuts can help you create one on the fly. Consider keeping these funds separate from your normal checking account. Keeping it separate can prevent it being spent and may help you earn more interest. (Compare savings accounts on Bankrate to find the right one for you.)

7. Achieve a goal during furlough

You’d rather be receiving paid time off or be working. But you can’t control being furloughed, so it makes sense to use this time wisely. This could be a good time to complete a project around the house or achieve a career or personal goal. These items could help you improve the value of your house or improve yourself for a future job. You might be able to find an interesting (and possibly free) webinar, virtual learning experience or online group related to your professional development. Also, look into finding organizations or societies related to your career, if applicable. The organization, or some of its members, might be going through the same situation and could offer helpful advice.

Perhaps it’s also a good time to update your resume in case the furlough turns into a layoff down the road. It might also be a good time to reconnect with old colleagues, your professional network or your alma mater. Catching up virtually or on the phone seems more commonplace with at least parts of the U.S. on pause and under stay-at-home orders.

“Now [that] you have this extra time,” Shah says. “Make sure you’re capitalizing on it.”

Prepare for future furloughs or a permanent job loss

Spending every cent wisely has never been more important. Keep your spending to the essentials as much as possible.

“None of us knows exactly what the road ahead entails,” McBride says.

Those that are still employed or are only furloughed with reduced hours or pay should use budgeting to save even more.

This article was published at Bank Rate on April 23, 2020. Reprinted with permission. 

About the Author: Matthew Goldberg is a consumer banking reporter at Bankrate. He graduated from Illinois State University with a bachelor’s degree in mass communication and earned an MBA at William Paterson University.

He began his writing career in 1998 at Sun Publications in Crystal Lake, Illinois. He was sports editor at The Daily Vidette, a sports reporter at The Journal Standard and a sports writer at The Quincy Herald-Whig. His work has also appeared in Sports Illustrated On Campus. He has been honored by both the Illinois Associated Press Editors Association and the Illinois Press Association.

He also has more than seven years of financial services experience, in both banking and insurance.


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The Shutdown: How It Hurt, What We Learned, Where We Go from Here

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seiu-org-logoFor working people across the country, the week ends with a mix of relief and frustration.

The hundreds of thousands of federal workers who had been furloughed during the 16-day government shutdown were glad to return to their jobs, freed from the anxiety of not knowing when they’d get another paycheck.

SEIU appreciates the strong stand President Obama, Senate Majority Leader Harry Reid (D-Nev.), House Minority Leader Nancy Pelosi (D-Calif.) and others took to defend the Affordable Care Act. And now, a window is open for negotiations on reversing the devastating sequester before the next round of cuts, scheduled for January.

At the same time, we can’t ignore that the shutdown hit working families hard. It did real damage–costing the economy $24 billion, according to Standard & Poor’s. That’s a staggering impact from what SEIU President Mary Kay Henry called a “crisis manufactured by the far-right wing of the Republican Party.”

That number–$24 billion–is unimaginably big, so consider one person’s story: LaShante Austin, a member of SEIU 32BJ, told MSNBC if the shutdown had not ended, she was not going to be able to pay rent. “I have got to put food on the table. I can’t tell the bill collectors, ‘Sorry, the government’s shut down,'” she said. Austin is a security officer at the Statue of Liberty, a symbol of American greatness.

Don’t working people like LaShante Austin deserve better from America’s leaders?

Congress must now debate and pass a budget to fund the federal government in the new year. A bipartisan committee with members from both the House and the Senate has until mid-December to issue recommendations. If the committee fails, the government could shut down again Jan. 15 and the debt ceiling could be reached Feb. 7.

This committee must meet its deadline, but it must also resist making decisions that would continue to fund vital services at austerity levels. Nor should members of Congress try to undermine retirement security in pursuit of a bogus “grand bargain.” We must work to change the economic narrative and reverse the politics of austerity. The shutdown is over, but the fight continues to improve the lives of working people. Sign up to receive updates as the budget committee gets to work.

Averting the crisis has also given Washington, D.C., the chance to focus again on immigration reform–something President Obama pledged this week to do.

The time is now for commonsense immigration reform, and you can add your voice!

SEIU, Reform Immigration For America (RI4A) and the Campaign for Community Change are taking the fight to social networks in a big way. Join us in calling on Home Depot, Wells Fargo, Bank of America and Dominos to use their influence to build support for immigration reform.

This article was originally printed on SEIU on October 18, 2013.  Reprinted with permission.

Author: SEIU Communications.


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Around the Country, State Employees Rally Against Furloughs, Pay Cuts

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State workers in West Virginia spent Presidents Day staging a rally at the capitol to ask for a $1,000 cost-of-living raise and better working conditions. Meanwhile, workers in California hope a bill advances that would ease some of their furlough pain.

As part of a plan to deal with California’s budget gap, state workers have given up three days of work per month, essentially cutting the pay of some 200,000 state employees by 14 percent. The future is uncertain for these workers, as Gov. Schwarzenegger has proposed to end the layoffs come June, but cut pay and payroll by 5 percent each.

The California state Senate Public Employment and Retirement Committee will hear the bill today. It is among more than two dozen bills aimed at fueling job creation in the state, and one of those that’s been received tepidly by Republicans, who want a jobs bill more focused on creating jobs in the private sector. It would affect jobs in revenue- and tax-collecting jobs.

The rally in West Virginia focused on a small cost-of-living increase and a smaller caseload for workers in the Department of Health & Human Resources.

“There’s bigger issues to deal with, but we’re having to beg for $1,000 a year,” said Jay Miner, of the Bateman Chapter of the West Virginia Public Workers Union, UE Local 170. The demonstrators presented a 2,000-word petition of support to the governor. They also face health insurance premium hikes.

The Charleston, W.Va., public service workers are among those around the country have been staging protests in recent weeks in response to the looming threats of pay cuts, furloughs, retirement benefit losses, insurance increases and spending cutbacks that affect their jobs.

On February 4, county, city and schools workers in Detroit marched downtown to demonstrate their opposition to furloughs and pay cuts. The protest was spearheaded by AFSCME, which represents about 60,000 Michigan workers, after Wayne County Executive Robert Ficano announced that workers would have to take a day each week off without first negotiating with the union.

Furloughs are an increasingly common tactic being used by both government entities and companies to improve the bottom line. But it puts workers in perilous conditions because they often can’t apply for unemployment.

Jacqueline Price, a 12-year county veteran, told The Michigan Citizen:

It’s terrible. Ficano is calling a lay-off a furlough. We can’t file for unemployment, and we are only working 32 hours a week so we are no longer considered full-time employees.

Detroit city employees are facing a possible 10-percent pay cut. The demonstration in Michigan came just days after public-sector workers stormed the capitol in Santa Fe, N.M., to show their opposition to a proposed 2-percent pay cut for state employees and teachers.

*This post originally appeared in Working in These Times on February 16, 2010. Reprinted with permission.

About the Author: Emily Udell is a writer for Angie’s List Magazine in Indianapolis. In 2009, she finished a stint drinking bourbon and covering breaking news for The Courier-Journal in Louisville, Ky. Her eclectic media career also includes time at the Associated Press, Punk Planet (R.I.P.), The Daily Southtown in southwest Chicago, and Radio Prague in the Czech Republic. She co-hosted and co-produced In These Times’ radio show “Fire on the Prairie” from 2003 to 2006.


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