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.
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.
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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.