The Corona virus has severely impacted U.S. employers and their employees and it is probable that many will lose their jobs, consider work from home arrangements or reductions in hours, including foreign nationals with work visas. In order to remain in compliance with immigration laws and also respect employees’ rights and needs, employers must consider the specific requirements of various visas. With proper planning and compassion, harm to the employer’s workforce and competitiveness can be reduced and goodwill maintained with affected employees, both citizens and foreign workers, when team spirit and morale are more important than ever.

Layoffs of Foreign Workforce

Most foreign workers, who are not lawful permanent residents (“green card” holders) or other workers with unlimited work authorization not tied to their sponsoring employer, will lose their legal immigration status as soon as they lose their job with the employer who sponsored their work visa.

Layoffs will also usually terminate eligibility for lawful permanent residence for employees with pending green card processes sponsored by their employer. However, most work visas (E-1, E-2, E-3, H1B, H1B1, L-1, O-1, TN) allow a 60 day grace period after the layoff during which the employee may change to another status, such as visitor or student status, or renew and extend their work visa if they find another employer to sponsor them, depending on the visa type.

H-1B workers may change employer sponsors within this 60-day period without having to leave the U.S., if their new employer files an H-1B application before the 60-day grace period expires. They even may begin working for the new employer upon the filing of the petition. Other visa categories allow less flexibility, such as the L-1 visa for managers or highly specialized workers who have to have worked for a foreign affiliate of their U.S. sponsoring company. Their visa therefore generally cannot be “transferred” to another employer. A pending green card process also generally cannot be “transferred” to a new U.S. employer, unless it has reached an advanced stage in the process.

For employees whose visa includes a Labor Condition Application (LCA) that guarantees certain wages and working conditions, such as H-1B or E-3 workers, their termination must include the following steps to be valid: the employee must be notified of the termination, the immigration service must be notified of the termination, and the employee must be offered payment for their transportation home. If these steps are not followed the termination may not be considered bona fide and the employer may be liable for back pay.

Furlough, Reduction of Hours, Unpaid Leave and Wage Obligations for Foreign Workers

As stated above, most foreign employees on work visas lose their legal status in the United States upon termination of employment by the sponsoring employer. The same is true for foreign employees who are subject to the LCA wage requirements mentioned above, in a “Shutdown Furlough,” i.e. the placing of employees in a temporary non-duty, non-pay status because of lack of work or funds, or other non-disciplinary reason. Those workers may not be placed on unpaid leave by the employer due to lack of work. This is called “benching” and is specifically prohibited.

Those employees cannot be paid less than specified in the LCA and in the corresponding visa petition. If a pay cut lowers the wage below the wage in the LCA, an amended petition may need to be filed and a new LCA posted at the work location.

Also, if the employer wants to reduce the hours of such worker further than specified by the LCA, such as from full-time to part-time, a new LCA and amended petition need to be filed.

However, these employees may choose to take unpaid leave at their request for reasons unrelated to the employment (family leave, illness, injury, maternity leave) if such unpaid leave is permitted pursuant to the employer’s benefit plan and applicable laws (FMLA, Americans with Disabilities Act). .

Working from Home

Many employers are requiring their employees to work from home these days. For most work visa types that don’t involve an LCA, which specifies minimum wage and working conditions, this is not a problem. However, for those visa types which are subject to LCA requirements, such as H-1B and E-3 workers, the employer must continue to comply with the LCA wage and notice requirements for the work location. If H-1B workers continue to work within the same metropolitan area as specified in the original H-1B petition and LCA, generally no new H-1B application is needed if the LCA is reposted at the home office location according to the regulations. However, if the new work location is outside normal commuting distance and the change in location lasts more than 30 days, a new amended H-1B petition may need to be filed with the U.S. immigration service (USCIS) for the new location. L-1, TN, and O-1 non-immigrants may also work from home for brief periods.

Changes in Working Conditions and Visa Amendments

In addition to wage obligations, normally the essential nature of the foreign national’s employment should continue to qualify for their particular visa category. For example, O-1 visas are for workers of extraordinary ability, and the O-1 visa employee should continue to work in the area of expertise. L-1A visa employees are for executives or managers, and an L-1A employee cannot be demoted into a non-managerial job. H-1B employees, as noted above, must work at the location specified in the LCA and continue to work in a specialty occupation requiring their experience and/or education and they cannot receive pay or benefits that undercut the working conditions of similarly positioned U.S. workers.

Unemployment insurance and Foreign Workers

We’ve received a lot of questions about unemployment compensation for immigrant and non-immigrant workers. There are two aspects to this question: First, can you receive unemployment compensation and second: Should you?

In general, foreign workers on work visas are not eligible for unemployment benefits when they are laid off because most localities require that the employee be immediately available for work (for another employer) to qualify. In addition, if they do not have lawful permanent residence (a “green card”) or other permanent work authorization independent of their employer, they lose their legal status as soon as they are terminated by the employer sponsoring their visa.

Most non-immigrant workers, specifically those on H-1B, E-3, E-2, L-1 and some O-1 workers are only allowed to work for a specific employer, the employer who sponsored and petitioner for the visa. So if their employment terminates, they’re generally not considered available to work. The same is true for undocumented workers.

On the other hand, there is a category of individuals with employment authorization documents, such as F1 students on OPT, spouses of E-2 and L-1 workers, adjustment applicants, asylees, refugees and asylum applicants. Those individuals have unrestricted work authorization and would generally be found available to work.

The same is true for green card holders. Those individuals are authorized to work for any employer and if they lose their job, they would be available to work for another employer.

There are some creative arguments that can be made, but please know that I do NOT endorse these arguments, I am just putting them out there for those individuals who want to try to make creative arguments.

• If you’re physically able to work visit regardless of whether you have employment authorization, your physical availability means that you’re available for work.
• Individuals who could be authorized for work upon receipt of an employment offer, such as TN workers. If they receive an employment offer and are qualified for TN status, you would be available for work.
• Immigrants or individuals who have to renew their workout authorization but haven’t yet received it. Those individuals might be able to argue that their underlying status allows them to work and the re-issuance of the card is simply a formality.

However, before collecting or attempting to collect unemployment compensation, the more important question is: “Should you”?

Most non-immigrant workers have to work to maintain their status. If you stop working, you’re no longer in valid status and one who is not in status, can not apply for unemployment. For certain workers such as H-1B, E-1, E-2, E-3, L-1, and O-1 there is a 60-day grace period on termination of employment in which they can pack up and leave or change employment, but without the use of the creative arguments above, these individuals would not be considered available for work during these 60 days.

Moreover, the real question is whether collecting unemployment would amplify the violation. If you’re already out of status, are you making it worse if you’re also collecting unemployment compensation?

Another concern is the Public Charge issue which has recently been enacted and deals with the federal government’s concern about whether immigrants and non-immigrants will become a burden on the federal government. Click here for more information on the Public Charge Rule.

By the black letter of the law, collecting unemployment compensation does not render you a public charge. However, there’s a huge amount of discretion, both in the issuance of visas by the Department of State and also the issuance of benefits by the Department of Homeland Security. So the concern is that until the government actually makes a statement about this topic that anyone who tries to collect unemployment insurance and later applies for a visa or any immigration benefit is taking a very large risk.

Fact is, people have been denied visas or benefits due to receipt of unemployment insurance.  Whether that was a mistake or an unfavorable exercise of discretion, we don’t know. We simply want everyone to be aware of the risks, but obviously everyone needs to make their own decisions based on their own safety and needs for themselves and their families in this very unprecedented time.

Reorganizations and Transfers of Foreign Workers to other Entities

As explained above, foreign workers with work visas usually must work for their sponsoring employer. They cannot normally be transferred to another U.S. entity, even if that entity is affiliated with the visa sponsor, without filing an amended petition with the U.S. immigration service. Exceptions may be made for H-1B workers whose sponsoring employer has been acquired by another company, or for L-1 visa workers employed by a large company with an approved “blanket” L-1. If the U.S. employer has affiliates abroad the foreign national employee may be transferred to the foreign affiliate and later transferred back when needed using the L-1 visa, if the other L-1 visa requirements are met.