Working Together

As the spread of COVID-19 prompts increasing travel restrictions, and as layoffs become an unfortunate reality in many industries, both U.S. employers and employees holding temporary work visas in the United States need to be aware of potential immigration-law complications.  This is an emerging situation on which our firm will likely write more in the coming weeks, but here are some initial considerations:

I.          Immediate loss of immigration status for laid-off employees – grace period and unlawful presence

Bear in mind that maintaining the specific employment relationship on which a temporary work visa such as an H-1B or L-1 is premised is a condition of the visa holder’s stay in the United States.   That is, if the employee admitted to the country under the visa loses her job – even in a no-fault layoff – she is no longer authorized to remain in U.S. regardless of the stated expiration date on the employee’s visa or form I-94.

The cutoff is the last day of work, not of pay.  For example, if an employer ends an H-1B visa-holder’s job duties effective March 20, but pays him four months’ severance, through July 20, the severance pay will not keep him in valid H-1B status beyond March 20.  It is possible to preserve the visa-holder’s status for longer by giving the employee longer advance notice of the termination and continuing his employment through what otherwise would have been the severance-pay period, rather than paying post-termination severance.  But this must be genuine.  If the employee remains on the payroll in name only, but has no actual job duties, lawful visa status will still end on the date that his actual job duties ended.  Conversely, maintaining his duties without paying him would create a different set of compliance problems for the employer even if motivated by a desire to help the employee.  In addition to the usual wage claims any employee would have, failure to pay the employee for his entire course of work would breach the obligations undertaken by the employer in the labor condition application to the Department of Labor that underlies the visa.

This is not to say that the employee necessarily has to depart the United States immediately after the last day of work.  In many classes of visas, there is a 60-day grace period, after the end of the authorized work period, before the visa holder has to depart the country, which separated employees typically use to look for new work and/or switch to a new visa status.  An employee laid off from an H-1B, L-1, or TN position, among others, will enter that grace period immediately upon separation from employment.  Note, however, that the grace period is not a visa itself.  It is simply a rule that treats an overstay of no more than 60 days as something other than “unlawful presence” (see below).  If the employee is not currently in the country when the separation occurs, or leaves thereafter, the employee cannot use the grace period provision to re-enter the United States, even within the 60-day window.   

The consequences of remaining in the United States beyond the grace period, and thus accruing what is termed “unlawful presence,” are severe.  A person accruing six months of unlawful presence becomes subject to the “three-year bar” that prevents her from returning to the country for those three years, even if otherwise eligible for a new visa.  And a person who accrues a year of unlawful presence will be barred from the U.S. for ten years.

II.        Delay in employment could lead to loss of OPT work authorization

The 60-day grace period has a different significance for graduating students in F-1 visa status who anticipate using their optional practical training (“OPT”) work authorization after graduation, and for employers contemplating hiring such graduates.  If an F-1 visa-holder does not apply for the OPT work authorization within 60 days after the end date for his academic program listed on form I-20, he will forfeit the authorization.  Accordingly, employers intending to use OPT authorization to hire critical employees may want to think twice before delaying hiring out of budget concerns.

Furthermore, a total of more than 90 days of unemployment in an F-1 visa holder’s OPT period (150 days in total in the case of someone holding a 24-month STEM extension) will result in her losing the remaining OPT allotment, even if she finds a new job thereafter, as well as falling out of status and having to depart the country.  Employers contemplating furloughs of OPT workers should plan accordingly.

III.       Corporate travel ban and departing H-1B employees

Part of an employer’s obligation under an H-1B visa, in particular, is to pay for an employee’s flight home at the end of her tenure, if she requests it.  While few employees take advantage of this right in boom times, employers should be prepared for the possibility that laid-off employees in the current circumstances may be more likely to do so.  The fact that a company may have a business-travel ban in effect barring its personnel from leaving the country or being reimbursed for business trips will not relieve the employer of the obligation to pay for a departing H-1B employee’s return travel.

IV.       Remote completion of I-9 verification

Thus far the government has not announced any relaxation, due to COVID-19, of the I-9 requirement for verifying the work eligibility of new employees (or re-verifying employees whose originally-presented documents have reached their scheduled expiration).  Because ICE has always maintained that employers must physically examine employees’ documents in-person and not rely on scans, a web-cam, or the like, this puts employers currently in a work-from-home posture in a difficult position.

A process exists, however, for remote verification of documents in other situations where, for example, an employee will be stationed at a stand-alone location far from the employer’s personnel office, etc.  Employers needing to carry out I-9 verification during a COVID-19 work-from-home period should consider using this process.  To do so, the employer engages an on-site agent where the employee is located, and instructs that person to physically examine the documents and fill out the appropriate portion of the form.  The agent need not be a company employee, and the agency does not require that the company have any particular sort of agreement with the agent.  The employer remains liable for any errors in the process when using an agent, however.  A notary public is often a good choice, but note that the notary may require specific instructions from the employer on what is being requested, and the notary should not notarize the documents or provide any attestation beyond what is called for on the form itself.

V.        Inaccessibility of U.S. consulate in home country

An employee needing an interview with a United States consulate, either for the initial issuance of his visa or for visa “stamping” after having changed or extended his status while present in the U.S., typically will be expected to obtain that interview at the consulate in his home country.  Travel restrictions between the U.S. and that country because of COVID-19 could significantly delay that process, and employers should plan accordingly, including being alert to the possibility that an employee whose status was changed or extended while present in the U.S., without obtaining an actual visa, could face difficulty even in traveling for business to a non-restricted destination, because she then may not be able to reach her home country for the interview that would be required before she could return, or be able to return immediately from the home country to the U.S.  While it is sometimes possible to schedule an interview at a U.S. consulate in a third country, individual posts vary greatly on the third-country-national applications that they will accept, and may be subject to still greater restrictions in current circumstances.  The prudent course is probably to avoid, if possible, any travel out of the U.S. for the foreseeable future by an employee who will require visa-stamping as a result of a departure.

VI.       Effect on H-1B lottery unknown

Beginning this month, the USCIS has put in place a new system for the coming H-1B “cap” season in which an employer seeking to sponsor an employee for a cap-subject H-1B visa first submits a simplified lottery entry only, and then, if the entry is selected in the lottery, submits the full H-1B visa petition that formerly was required to enter the lottery itself.  While this new system makes the lottery process simpler and cheaper for many employers, it has also come with a new, earlier deadline.  Lottery submissions must be made by Friday, March 20 rather than submitting petitions at the April 1 opening of the application window as in the past.  So far, USCIS has not announced any plans to extend the March 20 lottery deadline in view of COVID-19, so any employer contemplating filing a cap-subject petition should still complete the lottery entry immediately.  In the last recession, the number of H-1B petitions dropped significantly enough that for three years, there was no lottery.  The agency continued to accept petitions for as much as nine months beyond the April 1 opening of the application window before reaching the annual cap.  It is obviously possible that the same will happen this year and therefore that employers not registering for the lottery will still ultimately be able to submit visa petitions for the upcoming fiscal year, but as this cannot be determined in advance, one planning for an H-1B hire should make every effort now to meet the lottery deadline.