The wide-ranging effects of COVID-19 touch immigration laws in some significant ways. This quick guide will help you avoid pitfalls and know when to contact your attorney.
All employers must continue to complete I-9s (and E-Verify if applicable). The government has provided some relief for employers with remote work arrangements. On March 20, DHS announced new procedures to allow for remote inspection of documents. You can use an agent to complete Section 2 for you or you can use the special procedures if they apply to your business. Employers wishing to implement a new policy and procedures should consult with an attorney to ensure compliance.
Employment of workers on H-1B, H-1B1, or E-3 (all of which have a labor condition application – LCA) is limited to the worksites listed in the application. When employees are working remotely, actions may be necessary (either posting an LCA notice or an amendment filing) depending on the particulars of the situation.
Employees in other work visa categories do not have an LCA to consider. However, a material change in employment must be reported. Some categories, such as J-1 academic visas, may have specific limitations on the location of employment. Your immigration attorney can advise about your particular situation.
Employers of foreign workers on H-1B, H-1B1, or E-3 visas committed to pay wages at a certain level on the application. Whether an employee in this status can have a wage reduction will depend on the specifics of the situation. If you are considering a wage reduction, we strongly recommend that you consult with your immigration attorney to determine if a wage reduction is possible.
Other immigration categories do not involve wage commitments. However, material changes typically must be reported. Again, your immigration attorney can assist in determining how a wage reduction could affect these workers.
For this communication, a furlough is a temporary work stoppage without pay with the expectation that the employee will return to work. Because of the wage and other commitments for H-1B, H-1B1, and E-3 visas, the furlough of a worker in one of these categories may not be possible. However, because furloughs are fact-specific, it is important to consult with your immigration attorney. It is sometimes possible to amend the work visa to encompass a reduction in hours or wages.
Again, a foreign worker in another immigration category would not involve wage commitments, but material changes must be reported.
Employees in F-1 status utilizing optional practical training (OPT or STEM OPT) are subject to a limit on “unemployment” time (90 days for OPT and 150 days for STEM OPT). Whether a furlough is “unemployment” is a particularly thorny question. Students should consult an immigration attorney conversant in student visas for specific advice.
Employment of foreign workers may be terminated in the same way as other workers except that notification of the termination should be provided for workers on temporary visas. In particular, for workers in H-1B, H-1B1, or E-3 status, the U.S. Citizenship and Immigration Service should be notified and the LCA should be withdrawn. Additionally, if an H-1B worker’s employment is terminated and that person wants to leave the U.S., the employer is required to pay return transportation (for the former employee only, not family members).
If a foreign worker whose employment is terminated does not want to leave the U.S. (or cannot because of travel restrictions), an immigration attorney can assist in this transition. Although a 60-day discretionary grace period is available for many, a plan should be made as soon as termination occurs.
As with furloughs, students in F-1 status utilizing OPT or STEM OPT should consult an immigration attorney conversant in student visas to advise on how to avoid exceeding the limit on unemployment if they are laid off.
State law determines whether unemployment compensation is available to foreign workers. Iowa Workforce Development has said that because the “looking for work” restriction is suspended during the COVID-19 public health emergency, foreign workers are not ineligible to apply for that reason. However, an 18-month work history is typically required for the unemployment compensation calculation, making new arrivals ineligible.
Applying for or receiving unemployment compensation will not, in itself, trigger the “public charge” ground of inadmissibility for later immigration.