Seyfarth Blog Synopsis: In today's posting we discuss the impact that furloughs and layoffs may have on F-1 student workers and related employer obligations.
Attracting and retaining talent involves recruitment of recent graduates and those completing their studies at universities in the U.S. This talent pool often includes great candidates who are in the U.S. as students on temporary F-1 visas. U.S. Based businesses and the F-1 students who they employ now face new challenges as employers move forward with temporary or sometimes permanent cost saving measures through salary reductions, furloughs or layoffs in response to the impacts of COVID-19. This post provides an overview of some of the commonly asked questions to help employers navigating through ongoing changes.
By way of background, foreign nationals who hold F-1 visa status may have two types of employment authorization:
- Curricular Practical Training (CPT), which is tied to courses and associated with F-1 students completing studies; and
- Optional Practical Training (OPT), which most F-1 students apply for after completion of a degree program. All F-1 students are eligible for twelve months of OPT that may be used pre-graduation or post-graduation. F-1 students who are enrolled in STEM degree programs and whose employers participate in E-Verify are eligible for an additional twenty-four month period of employment authorization.
Q. Does an employer have any obligation related to F-1 student workers in the event of a furlough?
A. In general, a furlough would require a student, the designated school officials, and/or the employer to report that a suspension or interruption in employment has occurred to ICE (U.S. Immigration and Customs Enforcement ) through a SEVIS record update. If there is an application for employment authorization (EAD), an update to U.S. Citizenship and Immigration Services (USCIS) may also be needed.
SEVIS (the Student and Exchange Visitor Information System) is an interactive database ICE maintains that requires designated school officials to report F-1 students' compliance with immigration regulations, including practical training employment authorization.
Q. Do the reporting requirements vary based upon whether the F-1 worker is on CPT, OPT, or STEM OPT?
A. Yes, each category has its own set of requirements.
- CPT – Designated school officials must communicate to immigration authorities as to whether the employment is full-time or part-time. There are no specific obligations for an employer to update any agencies.
- OPT – Initial 12-months – The student is required to report any interruption in employment to the designated school officials, who are then responsible for updating SEVIS. An employer is not specifically obligated to update any agencies.
- STEM OPT – 24 month extension – To maintain status and related work authorization, students must continue to work at least 20 hours per week. The employer and the student must report and modify the required STEM OPT training plan for any material changes, including any significant decrease in the number of hours per week. The employer and student are required to sign a modified training plan and submit the plan to the designated school officials.
Q. Are there any other employer requirements for STEM OPT workers when there is a change in employment conditions?
A. Yes, in general an employer must report to the designated school officials when an F-1 student on STEM OPT extension terminates employment or otherwise leaves the employer prior to the end of the authorized OPT. This update must be made within 5 business days of the student leaving employment and may be submitted via email.
Q. Are there any reporting obligations for an employer whose F-1 student workers are temporarily working from home due to COVID-19?
A. For F-1 students working pursuant to STEM OPT extensions, Immigration and Customs Enforcement issued an FAQ on April 14, 2020, confirming that Designated School Officials do not need to update the employers' address on the required Training Plans previously submitted.
Q. What if the F-1 student worker is now working remotely while outside of the U.S. because of COVID-19 travel restrictions or concerns?
A. The same April 14, 2020 FAQ notes that F-1 students on CPT must remain enrolled in studies and the employer must either have an office outside the U.S. or be able to assess student engagement/learning objectives remotely. Neither ICE nor USCIS have provided specifics on how F-1s on OPT status will be treated in this instance.
Q. If the F-1 student worker's employment terminates, is their status impacted?
A. This may impact the student's status. An F-1 student worker's unemployed status may not exceed 90 days during the initial 12-month period of OPT and 60 days during the additional 24-month OPT STEM extension period.
Because furloughs or layoffs may be deemed as a failure by the F-1 student to maintain nonimmigrant status, impacted F-1 students should consider consulting with immigration counsel to evaluate options and begin planning for a possible change of status to another nonimmigrant visa category.
Q. Are there any wage obligations for employers of F-1 student workers similar to those of specialty occupation workers like the H-1B?
A. Unlike the H-1B, H-1B1 or E-3 visa categories, there are no wage obligations and liabilities for the employer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.