If companies are unable to generate enough work for an employee due to the COVID-19 outbreak, then H-1B workers, whose immigration status is tied to their employment, may not be able to maintain their non-immigrant status. There is currently no specific COVID-19 relief to nonimmigrant workers whose immigration status is tied to their employment. Thus, this advisory provides guidance based upon existing regulations for employment cessation.
A furlough refers to an employer’s suspension of an employee’s work without pay. These are normally temporary in nature with the expectation that work would still be available to the employee at the end of the furlough period.
To date neither the Department of Labor (DOL) nor the Department of Homeland Security (DHS) nor any other government agency has addressed furloughs related to COVID-19 for H-1B workers.
H-1B workers typically can only maintain their status while working for their sponsoring employer, and a work stoppage may be deemed impermissible “benching.” The DOL regulations for Labor Condition Application (LCA) requirements at 20 CFR 655.731(c)(7) govern wage obligations. Those regulations describe 2 circumstances for nonproductive status, which we’ve set forth in relevant part below.
(7) Wage obligation(s) for H-1B nonimmigrant in nonproductive status –
(i) Circumstances where wages must be paid. If the H-1B nonimmigrant is not performing work and is in a nonproductive status due to a decision by the employer (e.g., because of lack of assigned work), … or any other reason except as specified in paragraph (c)(7)(ii) of this section, the employer is required to pay the … employee… [omitted additional considerations for part-time work, etc.]
(ii) Circumstances where wages need not be paid. If an H-1B nonimmigrant experiences a period of nonproductive status due to conditions unrelated to employment which take the nonimmigrant away from his/her duties at his/her voluntary request and convenience (e.g., touring the U.S., caring for ill relative) or render the nonimmigrant unable to work (e.g., maternity leave, automobile accident which temporarily incapacitates the nonimmigrant), then the employer shall not be obligated to pay the required wage rate during that period…
Thus, if the furlough is the result of a reduction in available work due to economic circumstances this may be impermissible “benching” for which the H-1B worker must be paid. For example, if an employer is losing money and needs to furlough its employers, even if it is due to COVID-19, the employer may still be obligated to pay the H-1B wages pursuant to 20 CFR 655.731(c)(7)(i).
However, arguably, if the furlough is the result of conditions unrelated to employment but instead due to shelter in place orders which do not permit the H-1B worker to perform their duties, then the employer may not be obligated to pay the H-1B wages pursuant to 20 CFR 655.731(c)(7)(ii).
Should an employer decide to furlough its employees it is important that all employees are treated the same regardless of their nationality, and other protected grounds. This does not prevent an employer from furloughing only certain occupation and roles.
It is best for an employer or employee to evaluate their specific furlough policies with an experienced immigration and employment lawyer(s).
If an employer lays-off an H-1B worker, then that employer is required to offer the H-1B worker the cost of return transportation to their home country in accordance with the regulations at 8 CFR 214.2(h)(4)(iii)(E). The employee can decline that offer in which case the employer does not have a further obligation to pay for transportation. The employee may be eligible for a 60 day grace period and choose to remain in the U.S. and change employers. The new employer would have to file an H-1B petition for that employee.
The H-1B regulations do not have a specific provision for when an employer must inform USCIS of its termination of an H-1B employee. However, according to 8 CFR 214.2(h)(11)(i)(A), a petitioning employer is supposed to immediately notify the Service of any material changes in the terms and conditions of employment. MPLG typically advises its clients to inform USCIS within 10 days of the termination in order to avoid any back wages obligations.
III. Dormant H-1B
An H-1B worker may be able to return to their employer without the filing of a new H-1B petition under the principles of the “Dormant H-1B”. Under this principle, an H-1B petition remains valid until it expires or is revoked.
This issue was discussed in a letter by Efren Hernandez III, the Director of Business and Trade Service of legacy INS on April 24, 2002 (“Efren Letter”). While this letter is not a regulation, it has been widely accepted by USCIS since it is based upon principles arising out of existing law and regulation.
IV. H-1B Worker’s Leave of Absence due to COVID-19 and Employer’s Salary Obligations
On March 18, 2020, Congress passed the Families First Coronavirus Response Act (FFCRA or Act). The FFCRA applies to all US workers including nonimmigrant workers such as H-1Bs, among others. It becomes effective on April 1, 2020 and remains in effect through December 31, 2020. The FFCRA requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.
More information is available on the DOL’s COVID-19 webpage.
Disclaimer: This is a general advisory and not the basis for specific legal advice. The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.
Consultation: Please contact MPLG today to schedule a consultation for your individual concerns.