The unprecedented crisis caused by COVID-19 has led to the emergence of issues that have never arisen before. The United States of America is one of the hard-hit countries by coronavirus infection. While healthcare workers and armed forces are risking their lives to combat this deadly disease, the economy is falling into recession due to the discontinuation of non-essential services.
As business operations have been shut down, employers are compelled to undertake severe measures, such as employee layoffs and furloughs. But the situation is even more complicated for foreign nationals working in the USA. Along with managing expenses and finding a new job, they also have to maintain lawful visa status. Now, a large number of individuals from different parts of the world move to the United States on an H1-B Visa.
H1-B visa holders staying in the USA are facing tremendous problems due to COVID-19 as unintentionally they might violate visa regulations. Employees, employers, immigration lawyers, and the government are trying to find feasible solutions that can lessen the inconvenience caused to all the parties concerned.
We have covered implications of present corporate scenario on millions of H-1B visa holders residing in the USA and solutions implemented for them in this article.
A furlough refers to the suspension of an employee by an employer as a part of the cost-saving strategy. The time period for which an employee can be furloughed depends on the employer. The important point is that employees are not paid during this furlough or time off from work. Organizations that find it difficult to pay salaries to their staff resort to furloughs.
Employees are given their jobs back at the end of the furlough period. If any contract is not binding on them, furloughed employees might start searching for a new job to sustain. Employees who have been furloughed can seek unemployment benefits. In current circumstances where hundreds of companies have adopted the route of employee furlough, state agencies have received a vast number of claims for unemployment benefits.
But the big question is “are H1-B employees allowed to file an application for claiming unemployment benefits?”. Well, the regulations pertaining to H1-B visa holders generally demand that employers should pay their employees at all times, including their ‘nonproductive’ times, except when nonproductivity is due to conditions unrelated to the employment and employees taking voluntary leave.
So, employers are supposed to pay salary (in the same amount as specified in a visa petition) to H1-B visa holders even during the furlough period. By mutual consent between an employee and an employer, H1-B visa holders might use their accrued paid time off. Organizations that are not financially strong to fulfill this condition are resorting to employee layoffs.
Employee layoff occurs when an employer suspends the staff temporarily or terminates them permanently. Organizations choose to lay off employees for reducing operating costs irrespective of economic conditions prevalent at that time. However, most of the time, employee layoff is an outcome of economic collapse.
Employee layoffs also take place in cases where the business is shifted to another location or a major revamp is required in the management structure. A point worth mentioning here is that a layoff means termination for an H1-B employee.
Usually, H1-B visa holders who are terminated are given the cost of transportation for reaching their home country as well as a grace period. This grace period is of 60 days or until 10 days of the expiration of visa validity, whichever comes first. During this grace period, an H1-B visa holder cannot work in the USA.
But he or she can secure employment at any other organization in the country in accordance with the H1-B visa regulations. They can also change their visa status from H1-B to F1 or any other visa category to remain in the USA.
Remote working or working from home is one of the biggest outcomes of coronavirus pandemic. Employees who used to work inside the premises of an employer are now performing their job duties at their homes. As per rules applicable in general circumstances, international employees holding an H1-B visa have to work at the location specified in their visa application.
If the worksite of an H1-B employee needs to be changed, a new labor condition application (LCA) has to be submitted to the DHS (Department of Homeland Security). Then, an amended application for the H1-B visa has to be submitted to the USCIS (U.S. Citizenship and Immigration Services).
But, in case, the place of residence of an H1-B visa holder comes under the same metropolitan statistical area (MSA) as the location specified in visa documents, then no amended application is required. However, employers need to post the original LCA at the new worksite for 10 consecutive days before employees can start working at the new worksite.
In response to the COVID-19 crisis, a little relaxation has been given by the DOL (Department of Labor) as it would not have been possible for any employer to predict the change in worksite 10 days in advance. The DOL has stated that the notice will be considered timely when placed as soon as practical and no later than 30 calendar days after the worker starts working at the new worksite.
Now, usually, even if the place of residence of H1-B employees is outside the metropolitan statistical area mentioned in their visa documents, they can work without filing a new LCA and an amended application, but only for 30 days in each calendar year.
These days do not include weekends and holidays. This is known as a “short-term placement rule”. If they feel that they have to work from home that is situated outside the MSA in which their worksite is situated for more than 30 days, they must file a new LCA and an amended application.
At present, employees can use this 30-day period for working from home. But if they have already used some days earlier, then they can only the remaining days. If an employer is aware that employees will have to work remotely (i.e., from their place of residence), he or she has to file a new LCA with the DOL and an amended H1-B petition with USCIS.
Reduced Hours or Pay
Some of the companies are converting full-time employees to part-time employees for surviving in this crisis. Individuals holding an H1-B non-immigrant visa and employed in any firm across the USA must not only work but also should be paid according to the visa petition filed for them.
Therefore, if an employer wants to reduce the working hours or the salary of an H1-B employee, they need to submit an amended visa petition to USCIS. Moreover, the salary of an H1-B employee cannot be decreased below the prevailing wage for the concerned geographic area and the salary of similarly situated U.S. workers.
As per the rules, H1-B visa holders should work for 35 hours or more in a week to be considered full-time employees.
If an H1-B visa holder has to stay under quarantine due to being infected by coronavirus, or, showing symptoms for COVID-19, or coming into contact with a coronavirus positive patient, he or she has to take leave from employment. Such leave shall be paid and in compliance with the leave policy set by the employer. Additionally, organizations also need to consider sick leave provisions of the Families First Coronavirus Response Act.
Relaxations in Visa Regulations
Special relaxations have been announced by policymakers and bodies in the wake of coronavirus pandemic to make matters easy for H1-B visa holders in the USA.
- In-person appointments and services related to USCIS have been canceled until at least 3rd May 2020.
- The period for responding to Requests for Evidence (RFE) and Notices of Intent to Deny (NOID) issued between 01st March 2020 and 01st May 2020 has been extended.
Failure to Maintain H1-B Status
Though all possible scenarios and problems have been considered to arrive at solutions, including delayed submission of documents, relaxations in visa rules, and more, it might happen that an H1-B visa holder violates any rule, and thereby loses a lawful H1-B status.
For example, H1-B employees who have been terminated from their job might not be able to return to their home country even after the end of their grace period due to travel restrictions. So, it’s advisable that you keep the necessary evidence to prove that you haven’t broken any rule deliberately.
You should keep flight booking confirmation emails, flight cancellation notices, and other documents safely. You should also stay updated on the recent events and note them down with the exact date. H1-B employees who are working remotely should keep proof of the communication regarding the approval of ‘working from home’ given by their employer.
Rules Binding on Employers
If it’s found through an official complaint or an audit that an employer has furloughed an H1-B employee, i.e., suspended an H1-B employee without pay, strict action can be taken against him or her. An employer, in such a case, will have to pay not only salary to an H1-B employee but also fine to the government.
H1-B Visa Cycle Amid COVID-19
The lottery process for the H1-B visa cycle 2020-2021 (The Fiscal Year 2021) completed in the month of March this year. Employers of selected registrations were informed by the end of March 2020. As per the Forbes Magazine, USCIS denied hundreds of H1-B registrations made for visa cycle 2020-2021 by mistake.
The new electronic registration system in which employees put details of their prospective employees for the purpose of the H1-B cap lottery was used for the first time this year. This system detects duplicate registrations, i.e., multiple registrations made for the same beneficiary by a single employer. According to employers and immigration attorneys, registrations that were not duplicate were also denied with a comment “duplicate registration”.
Employers whose prospective employees got selected via lottery can file H1-B visa petitions from 01st April 2020 to 30th June 2020. All the required documents and fees have to be submitted to USCIS through the physical post. As mentioned in one of our previous blog posts, the premium processing service for all Form I-129 and I-140 petitions has been suspended until further notice due to COVID-19.
So, all H1-B cap petitions have to be submitted under regular processing. Under premium processing, along with the Form I-129, the Form I-907 has to be submitted and certain additional fees have to be paid to the DHS. The result of H1-B visa petitions filed with a premium processing request arrives within 15 calendar days.
As a result of the financial crisis caused by COVID-19, many employers whose prospective employees got selected have decided not to proceed with the process and abandon filing the H1-B visa petition.
Surrounded by fear and uncertainty, people from all backgrounds and walks of life are experiencing new and bizarre situations. Daily new developments take place in the personal and professional life of citizens and non-citizens living in the USA.
A piece of news that is doing the rounds currently is related to the lawsuit filed by the American Immigration Lawyers Association against USCIS (U.S. Citizenship and Immigration Services). The lawyers want USCIS to suspend visa deadlines applicable in various scenarios so that foreign nationals holding an American visa don’t unintentionally violate rules that can lead to the expiration of visa validity or losing lawful visa status.
The motive behind filing this lawsuit is to help foreign nationals, including but not limited to students, non-immigrant workers, and permanent residents to maintain lawful status. Missing deadlines or failing to abide by rules might lead to visa expiration or any other unfavorable outcome for them. It would not be fair to foreign nationals as present circumstances are not in control of anyone.
Moreover, many temporary foreign workers in the USA are currently working on the front lines to fight against the coronavirus disease. While some of these workers operate in the medical field (doctors and nurses), others provide essential services (groceries and healthcare products). Delivery drivers employed by large companies, such as Amazon and FedEx and agricultural workers are also a part of this group.
We hope that this global pandemic ends soon and the health of people infected by coronavirus gets restored!