Editor’s note: This is a sponsored post published as part of Kuck Baxter’s annual advertising package with Global Atlanta.
As immigration attorneys, employers terminating foreign workers often ask us about their obligations, as well as the work options available to those they’re forced to let go.
In recent days, companies dealing with the economic impacts of the coronavirus pandemic have kept the questions coming, only they’ve been substituting the word “furlough” for layoff.
Either way, immigration law has a lot to say about these unfortunate situations, and it’s vital to stay abreast of the latest developments to ensure compliance and help your workers transition.
First of all, I should note that the foreign nationals we’re talking about here are non-immigrants, meaning that they are neither U.S. citizens nor lawful permanent residents (green card holders). They usually fall under the H-1B, L, E, O, and TN temporary work visa categories, perhaps the best known of which is the H-1B used in “specialty occupations” from computer programmers to architects and chemists.
A rundown of the other categories noted above:
- L visas are used for intra-company transferees that enter the U.S. to render services “in a capacity that is managerial, executive, or involves specialized knowledge.”
- E visas are used for “treaty traders and investors” as well as Australian specialty occupation workers.
- O-1 visas are used for foreign nationals who can demonstrate the sustained national or international acclaim and recognition for achievements in the sciences, education, business or athletics.
- TN visas are used for Canadian and Mexican citizens to engage in business activities at a professional level as listed in the North American Free Trade Agreement.
A key consideration for employers using any of these categories is that in all cases, the visa is tied to a particular employer. When foreign employees are laid off or terminated, they immediately lose their visa status. (Importantly, immigration laws define a layoff as an action taken by an employer to cause the loss of a worker’s employment, but terminations for inadequate performance, violations of workplace rules, voluntary departures/retirement and the expiration of a contract are not included in this definition.)
What should employers do when their downsizing decisions affect foreign staff?
In some cases, the first step is to notify the U.S. Citizenship and Immigration Service (USCIS) Service Center which approved the petition underlying the foreign national’s visa. This notice fulfills the requirements for bona-fide termination of employment, which gives the employer legal justification to end payments to the employee. But not all situations allow for immediate pay stoppages; it depends on the legal status of the employee.
Knowing how to navigate the nuances of this situation will help employers avoid potential penalties, including back payment of wages.
No Furloughs for H-1B Foreign Workers
If the foreign worker is on an H-1B visa, furloughing the foreign worker does NOT end the requirement to pay the worker’s salary at the same level as before the furlough.
And — spoiler alert — that basically means there is no such thing as an unpaid furlough for an H-1B visa holder, because of the mandatory salary requirements.
A furlough is only permissible if it is requested by the employee for legitimate, personal related reasons (birth of a baby, health issues, and other situations). The employer cannot compel the request, nor can the employer stop paying the H-1B worker without terminating him or her and notifying USCIS.
When the employer wants the H-1B employee to return to full-time status, another H-1B amendment must be filed — yes, we realize it’s crazy.
Laying Off H-1B Foreign Workers
If an employer does terminate the employment of an H-1B worker, the company must provide the H-1B workers return transportation to their home country at the employer’s expense. This is airfare only, and only for the employee and not for his or her spouse, children, furniture or dog.
Laying Off Workers in Other Non-immigrant Visa Categories
The cases of other non-immigrant visa categories mentioned above (L, E, O-1, TN) differ in that the employer must also notify the USCIS of the termination of foreign workers’ employment, but there is no requirement of a notification to USCIS in the case of a furlough.
Effectively, this means a furlough is permissible, because the employee can go without wages with the presumption that the employer intends to re-hire them as soon as they are able. This allows the employee to maintain their lawful status.
Options for Terminated Workers
In either case, responsible employers will want to ensure the worker understands his or her options upon termination.
The employee can leave the United States immediately, but there is now a 60-day grace period for virtually all non-immigrant workers. This change instituted under former President Obama means they can stay legally for up to 60 days simply making plans for their departure.
Alternatively, these foreign workers can avail themselves of various other options to extend their stay lawfully:
- File for a change of status to visitor visa status (B-2), with proof of intended departure date, verification of support pending departure, and a valid reason for remaining (e.g., packing household goods, etc.). This application for change of status to visitor should occur prior to the end of the 60 days. This request to remain can be for up to six months, and during the time the extension is pending, the individual is validly and lawfully in the United States.
- File to change employers and remain in that visa status. This means, obviously, that the employee must find an offer of employment from another employer (or return to work for the same employer). The same process would have to be used that was originally used to obtain the current nonimmigrant status for the employee (although an H-1B visa holder would NOT have to back through the visa lottery). The employee must also file this change of employer petition while still in lawful status (during the time they are in the 60-day period OR during the time they are here under a pending B-2 extension).
- File to enroll in or return to school. This means the employee enrolls in a university to seek a degree, typically a higher degree, and seeks to change status to that of a student visa holder (F-1). Obviously, there are serious costs associated with this option, as the employee must pay tuition and related expenses, and typically will not be allowed to work, unless the employee enrolls in a degree program that allows Curricular Practical Training (CPR). Again, this change of status petition must be filed while the employee is still under the initial 60-day grace period, OR during the time the employee has a B-2 change of status petition pending.
In this difficult time, at least one client of ours is already offering to file a B-2 change/extension of status for their employees to ensure that they do not have to leave the U.S. by the end of 60 days. They are betting on being able to bring those employees back on board and reopening their operations within that 60-day period.
Not every company will have that option. Layoffs and terminations are difficult for all parties involved, but properly managed, both the employer and employee can come through this situation fully protected and compliant with all federal laws.
If you would like further information about specific case scenarios or situations, please call the Kuck Baxter Immigration office at (404) 816-8611 or email us at ckuck@immigration.net to speak to one of our experienced immigration attorneys.