Work in the Time of COVID-19: FAQs for Employers

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Effect of lay off, termination or unpaid furlough on foreign workers

E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN visa employees who are laid off, terminated or on unpaid furlough due to lack of work are no longer in valid status unless rehired within 60 consecutive days or until the end of their authorized validity period, whichever is shorter. They also have those 60 consecutive days in which to change status or find a new employer who must file a visa petition for them before that time period is up. Failing these options, they must depart the US. This 60-day grace period can only be used once per visa validity period.

To remind, an H-1B visa holder is not required to be paid for nonproductive time that is unrelated to employment, such as a worker’s voluntary absence from work. However, lawful permanent residents (LPRs), also known as green card holders, and foreign workers with Employment Authorization Documents (EADs) are eligible to take paid leave as provided by the Family and Medical Leave Act (FMLA), Families First Coronavirus Response Act (FFCRA) and Coronavirus Aid, Relief, and Economic Security Act (CARES Act) as well as under applicable state laws.

Unemployment insurance eligibility for foreign workers and related public charge determination

Nonimmigrant visa holders in E-2, E-2, E-3, H-1B, J-1, L-1, O-1, and TN visa status are unable to satisfy the “able and available to work” and “work search” requirements to collect unemployment insurance because their visas are employer-dependent. However, other foreign workers may be eligible if they can satisfy those requirements and have been employed with a valid Employment Authorization Document (EAD). The EAD is usually issued to asylees, pending asylum applicants, refugees, those individuals granted withholding of deportation or removal, Temporary Protected Status beneficiaries, Deferred Action for Childhood Arrivals (DACA) recipients, spouses of L-2 and E-2 nonimmigrants, and adjustment of status applicants. LPRs are also eligible.

Receipt of unemployment benefits will not adversely impact a foreign employee’s application for a green card or adjustment of status to LPR. Under the public charge rule, unemployment insurance is an earned benefit, not a public benefit, and is therefore exempt from the public charge inadmissibility determination. Tax credits also are exempt from the public charge determination.

Effect of reduction in hours and wages for nonimmigrant visa holders returning to work

A new Labor Condition Application must be filed with the Department of Labor (DOL) followed by an amended H-1B petition with US Citizenship & Immigration Services (USCIS) if an H-1B workers’ hours move from full-time — at least 35 hours per week — to part-time.

Requirements if terminating an H-1B worker

Employers unable to continue employing H-1B workers must complete a three-step “bona fide termination” process: a clear notice to the H-1B employee, a prompt notice to the Department of Homeland Security, and a prompt offer to the terminated employee to pay the reasonable transportation costs to return to his or her foreign country. This employer obligation forms part of the H-1B petition. Employers have been liable for interest on wages owed if the required steps for a bona fide termination were not followed.

When a new I-9 Form needs to be completed for any employee returning to work

Employees returning to work following a furlough or temporary layoff for lack of work, approved paid or unpaid leave because of the employee’s or family member’s illness or disability, or other temporary leave approved by the employer, are all considered to be continuing their employment and no new I-9 From completion is required. However, if the employees were placed in terminated status, the employer can choose to either re-verify the existing I-9 or complete a new I-9. If the employee was in terminated status, and completed his or her I-9 more than three years prior to the rehire date, the employer and employee must complete a new I-9 form.

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