United States: Strategies For U.S. Companies Navigating The Negative Impact Of The COVID-19 Pandemic On Nonimmigrant Workers In The H-1B, H-1B1, E-3, L-1, O-1, TN Or E-2 Categories

As a result of the COVID-19 pandemic, companies employing workers in the H-1B, H-1B1, E-3, L-1, TN, or E-2 nonimmigrant categories are faced with challenges when no longer able to provide sufficient full-time work due to a sudden decline in business. Some companies may be faced with the difficult decision of laying off or terminating the employment of workers. How do these things impact the immigration status of the foreign national?  What options or strategies are available to companies when trying to cut costs at the same time trying to retain personnel?  This memorandum will provide various options and/or strategies U.S. companies may pursue when navigating the negative impact of the COVID-19 pandemic on its' nonimmigrant worker labor force.

Nonimmigrant worker is still employed with the U.S. company, but the U.S. company may no longer have full-time work available for the nonimmigrant worker

Many U.S. companies impacted by the COVID-19 pandemic may have some work for the foreign national, and/or a desire to try to retain the foreign national through the duration of the COVID-19 pandemic and beyond.  Here are some options for U.S. companies confronted with this scenario:

Full-Time to Part-Time Employment:  U.S companies may file an amended petition with the U.S. Citizenship and Immigration Services (USCIS) to change the foreign national's employment from full-time employment to part-time employment. There is a filing fee that is required to be submitted with the amended petition, and all of the same documentation that accompanied the prior petition filing would need to be included with the amended petition. 

For H-1B, H-1B1, and E-3 workers, the U.S. company would be required to submit a new Labor Condition Application (LCA) to the U.S. Department of Labor (DOL) to document the part-time employment and have that LCA certified before filing the amended H-1B petition with the USCIS. 

Nonproductive Status with Pay: U.S. companies may have workers in non-productive status for a brief period of time between assignments, provided the nonimmigrant worker continues to be paid. Non-productive status is sometimes referred to as 'benching."  As long as the U.S. company continues to pay the nonimmigrant worker during the non-productive status, the nonimmigrant worker continues to maintain status in the U.S.

For workers in the H-1B, E-3, H-1B1 categories, since there is an LCA required to be submitted with the petition, the failure to pay workers in these categories may result in the U.S. company having to pay back wages to these workers.  In addition, a U.S. company that fails to pay workers in these categories may be fined, as well as debarred from filing LCAs in the future. 

Paid Time Off:  Another option U.S. companies may utilize is to have the nonimmigrant worker take paid time off (vacation time) in order to help the foreign national maintain status.  It will also help U.S. companies employing workers in the H-1B, H-1B1, and E-3 categories comply with the requirements under the LCA.  Given that the COVID-19 pandemic may last for several weeks or months, it is not likely the paid time off option will provide a long-time solution.  However, depending on how much vacation time the foreign national has accrued and the duration of the negative impact the COVID-19 pandemic may have on business, it may be an option for some U.S. companies.

Leaves of Absence: Another option that may be available is for the nonimmigrant worker to take an unpaid leave of absence.  However, in order for the leave of absence to be bona fide, the leave of absence cannot be employer driven and/or based on the absence of work. Giving birth, undergoing cancer treatment, caring for a sick relative are bona fide reasons a nonimmigrant worker may request a leave of absence.  Likewise, nonimmigrant workers may take a leave of absence if sick with COVID-19, or to care for a family member ill with COVID-19. A leave of absence may also be taken based on the need to care for a child, because the nonimmigrant worker no longer has childcare, as a result of the closure of the childcare facility due to a  state order closing of all nonessential businesses.  Please note that it is not likely that a leave of absence, based on a fear of contracting COVID-19, would be a bona fide reason.

There is no time limit on the amount of time that a nonimmigrant worker may request a leave of absence.  All that is required is that there be a continued expectation of employment at the conclusion of the leave of absence. As long as the request is not based on a lack of work, and there is a continued expectation of employment at the conclusion of the leave of absence, the nonimmigrant worker would be maintaining valid status during the leave of absence.  Please note that it is possible for the nonimmigrant worker to request an extension of his or her leave of absence depending on the facts of the case.  Please also note that the longer the leave of absence, the more challenging it may be for the nonimmigrant worker to maintain valid status, depending on the facts. 

Foreign worker's employment has been terminated by the U.S. company due to a lack of work

60-Day Grace Period:  Many nonimmigrant workers laid-off and/or who have their employment terminated by the U.S. employer may have a 60-day grace period from the date their employment ceases to find a new U.S. employer to sponsor them for employment in the U.S., or to change their status to another nonimmigrant category (Examples:  B-2 (Visitor), F-1 (Student), etc.)). Here is some additional information regarding the 60-day grace period:

• The foreign national is considered to be in nonimmigrant status during the 60-day grace period, and may change status, seek new employment, or make plans to depart the U.S. during the 60-day grace period.
• The 60-day grace period is for consecutive days.
• The 60-day grace period may not be longer than the end date of the authorized validity period of their nonimmigrant status.
• The foreign national is not authorized to engage in employment during the 60-day grace period.
• The 60-day grace period does not apply, if a petition to extend nonimmigrant employment is denied or after expiration of the authorized validity period of prior approved petition.  The 60-day grace period is intended only to apply to foreign nationals whose employment ends prior to the end of their approved employment.  It is not intended to apply after that period.
• USCIS may eliminate or shorten the 60-day grace period on a case-by-case basis.  Each case is assessed based on the totality of the circumstances surrounding the cessation of employment.  Circumstances that may lead USCIS to make discretionary determinations to shorten or eliminate the 60-day grace period may include violations of status, unauthorized employment during the 60-day grace period, fraud, criminal convictions, or national security concerns.  Given the global health crisis that exists, it is likely the USCIS will apply the 60-day grace period where it is able and appropriate.

Change of Status Application:  Foreign nationals who have their employment terminated may try to change their status to the B-2 (Visitor) category.  The maximum period that may be requested in the Application for a Change of Status (Form I-539) filed with the U.S. Citizenship and Immigration Services (USCIS) is six months.  There is a filing fee of $370.00 and a biometrics processing fee of $85.00 that is required to be paid to USCIS.  Dependent family members may also be eligible to change their status to the B-2 category.

Besides the option of changing status to the B-2 category, some nonimmigrant workers may be eligible to change their status to the H-4, L-2, O-3 nonimmigrant dependent categories, if their spouse is maintaining H-1B, L-1, or O-1 status. (Note:  Depending on the particular status held by the spouse, the nonimmigrant worker, may be eligible for other types of dependent nonimmigrant categories)  When changing status to a dependent nonimmigrant category, a Form I-539 application is required to be filed with the USCIS.  The same fees described above are applicable.  Evidence the spouse is maintaining valid  H-1B, L-1, O-1, etc. status is required to be included with the Form I-539 application.

Besides having the options of changing status to the B-2 category or other dependent nonimmigrant categories (H-4, L-2, O-3, etc.), some nonimmigrant workers may be able to change their status to the F-1 (Student) category.  In order to be successful, the foreign national will need to be accepted into an academic program at a U.S. college or university.  The foreign national must enroll as a full-time student and must demonstrate he or she has sufficient funds to support themselves while in F-1 status. 

Change of Employer Petition:  Foreign nationals who have their employment terminated by a U.S. company may try to find a new U.S. employer willing to sponsor them for employment.  However, there are specific requirements that need to be met for the various nonimmigrant categories, and considering the decline in the economy and high unemployment in the U.S., currently, foreign nationals may find this challenging.  In order to have a U.S. employer sponsor the foreign national for employment, a Petition for Nonimmigrant Worker (Form I-129) is filed with USCIS.  There are filing fees that are required to be paid. If the foreign national was in H-1B status with a previous U.S. company, and a new U.S. employer is willing to sponsoring the foreign national for the H-1B category, the foreign national may begin work as soon as the petition is received at USCIS.  If the new U.S. employer's petition indicates the foreign national is changing status to another nonimmigrant category, the foreign national will need to wait for the petition to be approved before beginning work.

F-1 OPT and STEM OPT Students (90 and 150 days of unemployment):  An F-1 student in his or her Optional Practical Training (OPT) period that has their employment terminated will need to report this to the Designated Student Official (DSO) at their college or university. U.S. companies employing an F-1 student in their STEM OPT period will need to report changes in the employment of the F-1 student within 10 days to the DSO.  F-1 students in their initial one-year period of OPT may have up to 90 days of unemployment before triggering a maintenance of status issue.  F-1 students in their two-year STEM OPT period may have up to 150 days of unemployment before triggering a maintenance of status issue. U.S. employers and F-1 students that have questions regarding how unemployment may impact the foreign national and/or any OPT reporting obligations, may contact the Student Exchange Visitor Program (SEVP) directly at 703-603-3400 or 1-800-892-4829 or e-mail SEVP at sevp@ice.dhs.gov.  In addition, the following website has a lot of information for F-1 students navigating the impact of the COVID-19 pandemic on their status:  https://studyinthestates.dhs.gov/

Three Year Bar - Accrual of More than 180 Days of Unlawful Presence, but Less than 1 Year:  If a U.S. employer needs to terminate the employment of a nonimmigrant worker as a result of the COVID-19 pandemic, this may result in the nonimmigrant worker to begin to  accrue "unlawful presence" in the U.S. at some point in the future.¹ Foreign nationals and any dependent family members who accrue more than 180 days of unlawful presence in the U.S., but less than 1 year, and depart the U.S., would be barred from re-entering the U.S. for three years.  Naturally, foreign nationals would want to monitor the accrual of any unlawful presence and make sure to depart the U.S. before accruing more than 180 days of unlawful presence in order to avoid being barred for three years. (Note:  If the foreign national accrues more than 1 year of unlawful presence and departs the U.S., the foreign national may be barred for 10 years from entering the U.S.) In addition, while the foreign national is accruing unlawful presence in the U.S., the foreign national may be picked up by Immigration and Customer Enforcement (ICE) and placed in removal proceedings at any time.  However, given the lack of resources of the federal government, ICE gives priority to those foreign nationals who possess a criminal record.  Please note that even if a foreign national does not accrue more than 180 days of unlawful presence, an extensive accumulation of unlawful presence may negatively impact the ability of the foreign national to receive a U.S. visa in the future.

USCIS Discretion:  It is also important to note that the USCIS has discretion and has stated that there are special situations that require the exercise of it. See the following: https://www.uscis.gov/humanitarian/special-situations.  It is possible the USCIS may use its discretion during the COVID-19 pandemic in certain cases to provide relief to foreign nationals negatively impacted by the pandemic.  More information and/or guidance may be issued by USCIS with respect to its use of discretion during the COVID-19 pandemic in the coming days and/or weeks.  While the exercise of discretion by the USCIS is something that may provide relief to foreign nationals who may have maintenance of status issues caused by the COVID-19 pandemic, it would not relieve employers of their wage liability in certain cases.²

Footnotes

1 Note:  Unlawful presence begins to accrue upon expiration of the foreign nationals I-94 record, a determination is made by the USCIS that the foreign national is not maintaining lawful status in the U.S., or a determination made by a U.S. immigration judge that the foreign national is not maintaining lawful status in the U.S.

2 Note:  U.S. employers that employ workers in the H-1B, H-1B1, and E-3 nonimmigrant categories have strict wage compliance requirements due to the attestations made in the Labor Condition Application (LCA) required for these categories.  In order for the U.S. employer to cut off its wage liability, the U.S. employer would need to take the following action:  1) Issue a termination letter to the H-1B, H-1B1, or E-3 worker; 2) Offer to pay the cost of one return plane ticket home for the worker; 3) Send a request to the USCIS to withdraw the petition; and 4) Send a request to the U.S. Department of Labor to request withdrawal of the LCA.

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.