Article Summary

Ojo-Ade

This is a period of extraordinary uncertainty for U.S. employers who rely on the talents of foreign workers to run their business. Even as the COVID-19 pandemic causes unprecedented upheaval, the Trump Administration is changing rules about who can — and, more important, cannot — enter the country in order to work. Here our firm addresses many of the top questions we've heard from employers.

This article by former associate Tomi Ojo-Ade was published by The Employment Law Group, P.C. on June 28, 2020.

By Tomi Ojo-Ade

INTRODUCTION

Many U.S. companies employ workers whose ability to remain lawfully in the U.S. is based on a non-immigrant visa that is tied to their ongoing employment — often at a specific company. With the COVID-19 pandemic causing millions of layoffs and furloughs, possibly including huge cuts at the U.S. Citizenship and Immigration Services (USCIS) itself, the status of many of these workers is already unclear. Since June 22, 2020, when President Trump suspended the entry into the U.S. of certain foreign workers, the issues have become even murkier.

Can foreign workers’ employment be put on hold without jeopardizing their work visas? What legal obligations do employers have toward workers whose visas they have sponsored — or are in the process of sponsoring? If an employer lays off such an employee, what must be reported to the government? What is the status of H-1B visas that are currently in process?

Our law firm helps to resolve immigration problems faced by individual employees. Below are answers to some of the most common questions we are being asked by the employers of such workers, based on our firm’s best knowledge as of June 28, 2020. Please note, however, that nothing is certain in this fast-moving area — and each employee’s situation is different anyhow.

Also note that immigration status is just one factor that businesses must consider when making changes. In general, employers cannot take action against employees based solely on their immigration status. Laying off only foreign workers, for instance, could lead to legal liability.

For advice on an individual situation, please contact our immigration attorneys.

This article concludes with a glossary of the most common non-immigrant work visas, along with a summary of relevant rules for each type.

WHAT YOU NEED TO KNOW

IMPORTANT: The following Q+A is intended as a general summary of facts and law and not as legal advice upon which you should rely or act. Every immigration case is unique and fact-specific.

Q: As an employer, I have less work available because of the COVID-19 pandemic. Rather than laying off employees, I would like everyone to work on a part-time basis. Is this an option for my employees on non-immigrant visas?

A: It depends on their visa types. The following categories are generally unproblematic for part-time work: E-1/E-2, L-1, TN, and O-1. In all these cases, however, the holders must remain primarily engaged in the activity for which their visas were approved. A change of duties, therefore, could be more difficult than a plain reduction of hours.

For an F-1 student visa holder with OPT (Optional Practical Training) status, a reduction of hours is also OK, but you will need to report the change to the student’s educational institution.

H-1B workers are more difficult, as they were hired pursuant to a Labor Condition Application (LCA) under which you, the employer, certified the terms and conditions of their employment. Any material changes to these terms and conditions — including a reduction in hours — would require the filing of a new LCA and an accompanying H-1B amendment petition. Such a process isn’t precluded under the current terms of President Trump’s H-1B suspension, since the workers are already lawfully working in the U.S., but approval may be difficult in the current environment.

REMINDER: A glossary of visa types is available at the end of this article.

Q: How about wage cuts? If I am reducing wage rates (not hours) across the board, is there any special consideration for employees on non-immigrant visas?

A: This shouldn’t be a problem as long as non-immigrant workers are not singled out for differential treatment — and as long as the reduction doesn’t result in wages for H-1B employees that fall below the prevailing wage for the occupation.

The rule for H-1B workers is that they must receive the actual wage paid to similarly occupied U.S. workers or the prevailing wage in their area of employment, whichever is higher. An across-the-board salary reduction creates a new “actual wage” for comparators, so the market wage is the remaining consideration.

Q: My business depends on H-1B professionals with skills that aren’t in sufficient supply in my area. How will the June 22 Trump proclamation affect my current and future H-1B employees?

A: As long as your current H-1B employees were in the U.S. on June 24, 2020 their legal status is not affected at the moment. As a practical matter, however, they should avoid travel outside the U.S. until the order expires, since they could be denied reentry under some circumstances. Not being able to visit home is a big hardship for them. Renewal of expiring visas may be a problem, too: Consult an immigration attorney for your best course of action.

If you have current H-1B workers who happened to be outside the U.S. on June 24, consult an immigration attorney about the best way to secure their reentry.

In general, future H-1B employees — those who have not yet secured visas — will not be granted visas or allowed into the U.S. until January 1, 2021 at the earliest. There are limited exceptions, including for services “essential to the United States food supply chain” and for people whose entry would be “in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.”

Q: What other types of visas are temporarily suspended under the June 22 proclamation?

A: H-2B, L-1, and J visas.

H-2B visas are often seasonal and are commonly used for non-agricultural outdoor workers, such as landscapers and groundskeepers; for workers at resorts, such as housekeepers and recreation attendants; for food-processing workers, such as meat and poultry cutters; and for seasonal laborers and construction workers.

L-1 visas are for foreign transferees to affiliated U.S. employers in an executive, managerial, or specialized-knowledge position. J visas are for certain “exchange visitors” and their suspension is limited to foreign nationals in an intern, trainee, teacher, camp counsel, au pair, or summer work travel program.

The same considerations apply for these visas as noted above for H-1B visas.

Q: This seems like an enormous disruption for employers who rely on foreign workers.

A: For sure. While the demand for some of these positions may be lower during the pandemic, other areas are wholly unaffected and U.S. workers are unlikely to fill the gap either way — especially in the H-1B and H-2B economies, for lack of skills and interest, respectively. (A lack of L-1 and J employees may be less mission-critical for employers.)

Q: If I depend on foreign workers, will the June 22 order be my last disruption? Are the workers I have in the U.S. secure, at least?

A: Maybe not. President Trump’s proclamation requires several of his cabinet members to consider further measures — possibly extending even to already-admitted holders of H-1B non-immigrant visas and EB-2 or EB-3 immigrant visas, to ensure that their presence “does not disadvantage United States workers.”

Other possible steps include crackdowns on Labor Condition Application (LCA) violations for H-1B holders; increased barriers for visa applications; and new restrictions on work eligibility for foreign nationals whose immigration status is in dispute — including those who have been arrested on criminal charges but not yet convicted.

It remains unclear whether the Trump Administration is serious about causing further chaos for businesses and employees, but nothing is impossible in an environment that may grow more polarized as national elections approach in November 2020.

Q: I need to furlough some employees, including some workers on non-immigrant visas. What must I consider?

A: A furlough is a temporary layoff from work. In general, workers will return to work after a furlough; they usually won’t get paid during the furlough but they’ll generally keep other benefits, such as health insurance.

Employers may not furlough H-1B workers. Even during the pandemic this likely counts as “benching” and can result in stiff penalties.

Employers can furlough F-1 OPT workers, but by doing so may jeopardize a student’s lawful status. F-1 OPT student workers can remain unemployed only for a cumulative period of 90 days before losing their status; to avoid harm, please confer closely with each individual worker before taking action.

For other common types of non-immigrant visa, including E-1, E-2, L-1, TN, and O-1, a furlough is generally allowed.

Q: If I furlough my non-immigrant workers for up to 90 days, can they claim unemployment insurance?

A: A non-immigrant worker must be authorized to work in the U.S. without restriction in order to be eligible for unemployment insurance, including the enhanced benefits provided by federal and local pandemic legislation — so your workers likely can’t receive the money if their visa is tied to employment at your particular company — as it will be for E-2, E-2, H-1B, L-1, and O-1 employees, for example.

Even theoretically eligible workers still must meet all the regular requirements, of course, and they will need to provide their Alien Registration Number (“A Number”) and a valid Employment Authorization Card issued by USCIS before approval.

Q: What happens if I must terminate a worker on a non-immigrant visa because of the pandemic?

A: In general, employers should inform USCIS whenever they fire a non-immigrant worker.

Employers have additional obligations if they fire sponsored H-1B and O-1 workers: They must offer to pay the reasonable cost of transportation back to the worker’s home country and, for H-1B workers, must withdraw their visa petition at the USCIS or face penalties for their failure.

For F-1 OPT workers, employers must inform the student’s sponsoring academic institution.

As a matter of humanity, please think twice before firing a non-immigrant worker for whom a new petition will not be considered under the Trump Administration’s moratorium.

Q: My company is sponsoring a current non-immigrant worker for permanent residency. Is this process affected by either the pandemic or the president’s June 22 proclamation?

A: If you’re in the middle of this process, you have filed a Permanent Employment Certification Application, or “PERM,” that requires certification by the U.S. Department of Labor. The PERM process involves showing that no U.S. worker is qualified and available for the position you want your foreign worker to fill.

Because the PERM process is based on market conditions that have changed radically — and because of the president’s rhetoric, and because of pandemic-related delays in government processing — employers should expect slow-walking and heightened scrutiny from the DOL.

Q: This isn’t specific to non-immigrant workers, but it’s about immigration-related paperwork. My company is strict about complying with I-9 verification requirements. Now that everyone is working from home, however, it’s hard for our H.R. people to examine original documents when they onboard new employees. Is it OK for them to look at documents electronically?

A: Form I-9 requires new employees to certify their eligibility to work in the U.S. It also requires employers to state under penalty of perjury that they have physically examined a new hire’s identification and work authorization documents, in the presence of the employee, in order to confirm that they appear genuine and entitle the employee to work in the U.S. This is supposed to happen within three days of hiring.

In light of the COVID-19 pandemic, U.S. Immigration and Customs Enforcement (ICE) has relaxed its I-9 requirements. Employers whose entire workforce is operating remotely can inspect the original documents over video link, fax, or e-mail, and obtain copies of those documents within three business days. Once the employer resumes regular operations, a representative must inspect the original documents as usual and fill out Section 2 of the I-9 form, citing COVID-19 as the reason for delay in the form’s “Additional Information” field.

Note that this policy applies only where zero employees are working at the company’s workplace, or where the new hire is personally subject to a COVID-19 lockdown. If neither condition applies, the normal I-9 process is supposed to go ahead.

ICE originally said its temporary I-9 policy would last at least 60 days, and so far has extended it for two additional 30-day periods. The current extension expires on July 19, 2020; after that date employers should check with ICE for updates.

Q: Anything else should I bear in mind about my employees on non-immigrant visas during this period of pandemic and upheaval?

A: Foreign workers in the U.S. are uniquely vulnerable to negative actions by their employers, as they have less time and fewer options to adapt to a change in employment. For many visa holders, termination means the end of their ability to work in the U.S. Some visas allow a 60-day grace period during which the employee can switch to a different sponsoring employer or a different visa type — but such a switch may be difficult or impossible right now.

In addition, President Trump’s recent proclamations will force many non-immigrant workers to abandon any hope of visiting their home country at least until 2021, including for family deaths or other emergencies, since it’s possible they won’t be readmitted and would lose their livelihood.

The COVID-19 pandemic is difficult for everyone, of course — including for employers who must make difficult choices. In making such choices, however, please bear in mind the special circumstances of your foreign workers.

GLOSSARY

What follows is a list of common types of non-immigrant work visas. It is not exhaustive.

E-1 / E-2

The E non-immigrant visa is generally used by business owners, managers, and employees who must remain in the U.S. for an extended period in order to help operate an enterprise that is engaged in foreign trade with the U.S. or that represents a major investment in the U.S.

E visas are available only where a “treaty of commerce and navigation” or a “bilateral investment treaty” allows a foreign country’s nationals to enter the U.S., and only to nationals of that country. As a result, these are sometimes called “treaty trader” or “treaty investor” visas.

F-1 student visas with Optional Practical Training (OPT)

Under an F-1 OPT visa, foreign students can seek U.S. employment on a temporary basis as long as it amounts to practical training in their main area of study. Such students usually must complete a certain amount of classwork before becoming eligible to work.

H-1B

The H-1B non-immigrant visa is available to college-educated professionals in specialty fields such as medicine, law, architecture, I.T., and education. In order to hire a foreign worker on an H-1B, an employer must post the position’s availability to U.S. workers and then must file a Labor Condition Application (LCA) that attests to the need to reach outside the U.S. for employees and states the terms and conditions that will apply to the new employee. The U.S. Department of Labor must certify each LCA, and there is an annual quota for H-1B admissions.

H-2B

H-2B non-immigrant visas are often seasonal and are commonly used for non-agricultural outdoor workers, such as landscapers and groundskeepers; for workers at resorts, such as housekeepers and recreation attendants; for food-processing workers, such as meat and poultry cutters; and for seasonal laborers and construction workers.

J

“Exchange Visitor Visas” (J visas) are available to foreign citizens who get approval to participate in certain exchange visitor programs, including scholars and students, au pairs, camp counselors, interns, and trainees.

L-1

These “intracompany transferee” visas are available to foreign workers who are transferred from a qualifying foreign company to its U.S. affiliate in an executive, managerial, or specialized knowledge position.

O-1

The so-called “genius visa” is reserved for people with “extraordinary ability” in athletics, science, education, or business (O-1A), or in the arts (O-1B), or who have been recognized for a record of “extraordinary achievement” in movies or TV (O-1B).

TN

This visa category was created under the North American Free Trade Agreement, or NAFTA. It allows qualified Canadian and Mexican professionals — including accountants, engineers, lawyers, pharmacists, scientists, and teachers — to work temporarily in the U.S.

SUMMARY OF RULES

What follows is a highly simplified summary; for further details and explanation, consult an immigration attorney.

———-

Tomi Ojo-Ade is a former associate of The Employment Law Group, P.C.