As a result of the COVID-19 pandemic, companies employing

workers in the H-1B, H-1B1, E-3, L-1, TN, or E-2 nonimmigrant

categories are faced with challenges when no longer able to provide

sufficient full-time work due to a sudden decline in business. Some

companies may be faced with the difficult decision of laying off or

terminating the employment of workers. How do these things impact

the immigration status of the foreign national?  What options

or strategies are available to companies when trying to cut costs

at the same time trying to retain personnel?  This memorandum

will provide various options and/or strategies U.S. companies may

pursue when navigating the negative impact of the COVID-19 pandemic

on its' nonimmigrant worker labor force.

Nonimmigrant worker is still employed with the U.S. company,

but the U.S. company may no longer have full-time work available

for the nonimmigrant worker

Many U.S. companies impacted by the COVID-19 pandemic may have

some work for the foreign national, and/or a desire to try to

retain the foreign national through the duration of the COVID-19

pandemic and beyond.  Here are some options for U.S. companies

confronted with this scenario:

Full-Time to Part-Time Employment:  U.S

companies may file an amended petition with the U.S. Citizenship

and Immigration Services (USCIS) to change the foreign

national's employment from full-time employment to part-time

employment. There is a filing fee that is required to be submitted

with the amended petition, and all of the same documentation that

accompanied the prior petition filing would need to be included

with the amended petition. 

For H-1B, H-1B1, and E-3 workers, the U.S. company would be

required to submit a new Labor Condition Application (LCA) to the

U.S. Department of Labor (DOL) to document the part-time employment

and have that LCA certified before filing the amended H-1B petition

with the USCIS. 

Nonproductive Status with Pay: U.S. companies

may have workers in non-productive status for a brief period of

time between assignments, provided the nonimmigrant worker

continues to be paid. Non-productive status is sometimes referred

to as 'benching.”  As long as the U.S. company

continues to pay the nonimmigrant worker during the non-productive

status, the nonimmigrant worker continues to maintain status in the

U.S.

For workers in the H-1B, E-3, H-1B1 categories, since there is

an LCA required to be submitted with the petition, the failure to

pay workers in these categories may result in the U.S. company

having to pay back wages to these workers.  In addition, a

U.S. company that fails to pay workers in these categories may be

fined, as well as debarred from filing LCAs in the

future. 

Paid Time Off:  Another option U.S.

companies may utilize is to have the nonimmigrant worker take paid

time off (vacation time) in order to help the foreign national

maintain status.  It will also help U.S. companies employing

workers in the H-1B, H-1B1, and E-3 categories comply with the

requirements under the LCA.  Given that the COVID-19 pandemic

may last for several weeks or months, it is not likely the paid

time off option will provide a long-time solution.  However,

depending on how much vacation time the foreign national has

accrued and the duration of the negative impact the COVID-19

pandemic may have on business, it may be an option for some U.S.

companies.

Leaves of Absence: Another option that may be

available is for the nonimmigrant worker to take an unpaid leave of

absence.  However, in order for the leave of absence to be

bona fide, the leave of absence cannot be employer driven and/or

based on the absence of work. Giving birth, undergoing cancer

treatment, caring for a sick relative are bona fide reasons a

nonimmigrant worker may request a leave of absence.  Likewise,

nonimmigrant workers may take a leave of absence if sick with

COVID-19, or to care for a family member ill with COVID-19. A leave

of absence may also be taken based on the need to care for a child,

because the nonimmigrant worker no longer has childcare, as a

result of the closure of the childcare facility due to a 

state order closing of all nonessential businesses.  Please

note that it is not likely that a leave of absence, based on a fear

of contracting COVID-19, would be a bona fide reason.

There is no time limit on the amount of time that a nonimmigrant

worker may request a leave of absence.  All that is required

is that there be a continued expectation of employment at the

conclusion of the leave of absence. As long as the request is not

based on a lack of work, and there is a continued expectation of

employment at the conclusion of the leave of absence, the

nonimmigrant worker would be maintaining valid status during the

leave of absence.  Please note that it is possible for the

nonimmigrant worker to request an extension of his or her leave of

absence depending on the facts of the case.  Please also note

that the longer the leave of absence, the more challenging it may

be for the nonimmigrant worker to maintain valid status, depending

on the facts. 

Foreign worker's employment has been terminated by the U.S.

company due to a lack of work

60-Day Grace Period:  Many nonimmigrant

workers laid-off and/or who have their employment terminated by the

U.S. employer may have a 60-day grace period from the date their

employment ceases to find a new U.S. employer to sponsor them for

employment in the U.S., or to change their status to another

nonimmigrant category (Examples:  B-2 (Visitor), F-1

(Student), etc.)). Here is some additional information regarding

the 60-day grace period:

  • The foreign national is considered to be in nonimmigrant status

    during the 60-day grace period, and may change status, seek new

    employment, or make plans to depart the U.S. during the 60-day

    grace period.

  • The 60-day grace period is for consecutive days.
  • The 60-day grace period may not be longer than the end date of

    the authorized validity period of their nonimmigrant status.

  • The foreign national is not authorized to engage in employment

    during the 60-day grace period.

  • The 60-day grace period does not apply, if a petition to extend

    nonimmigrant employment is denied or after expiration of the

    authorized validity period of prior approved petition.  The

    60-day grace period is intended only to apply to foreign nationals

    whose employment ends prior to the end of their approved

    employment.  It is not intended to apply after that

    period.

  • USCIS may eliminate or shorten the 60-day grace period on a

    case-by-case basis.  Each case is assessed based on the

    totality of the circumstances surrounding the cessation of

    employment.  Circumstances that may lead USCIS to make

    discretionary determinations to shorten or eliminate the 60-day

    grace period may include violations of status, unauthorized

    employment during the 60-day grace period, fraud, criminal

    convictions, or national security concerns.  Given the global

    health crisis that exists, it is likely the USCIS will apply the

    60-day grace period where it is able and appropriate.

Change of Status Application:  Foreign

nationals who have their employment terminated may try to change

their status to the B-2 (Visitor) category.  The maximum

period that may be requested in the Application for a Change of

Status (Form I-539) filed with the U.S. Citizenship and Immigration

Services (USCIS) is six months.  There is a filing fee of

$370.00 and a biometrics processing fee of $85.00 that is required

to be paid to USCIS.  Dependent family members may also be

eligible to change their status to the B-2 category.

Besides the option of changing status to the B-2 category, some

nonimmigrant workers may be eligible to change their status to the

H-4, L-2, O-3 nonimmigrant dependent categories, if their spouse is

maintaining H-1B, L-1, or O-1 status. (Note:  Depending on the

particular status held by the spouse, the nonimmigrant worker, may

be eligible for other types of dependent nonimmigrant

categories)  When changing status to a dependent nonimmigrant

category, a Form I-539 application is required to be filed with the

USCIS.  The same fees described above are applicable. 

Evidence the spouse is maintaining valid  H-1B, L-1, O-1, etc.

status is required to be included with the Form I-539

application.

Besides having the options of changing status to the B-2

category or other dependent nonimmigrant categories (H-4, L-2, O-3,

etc.), some nonimmigrant workers may be able to change their status

to the F-1 (Student) category.  In order to be successful, the

foreign national will need to be accepted into an academic program

at a U.S. college or university.  The foreign national must

enroll as a full-time student and must demonstrate he or she has

sufficient funds to support themselves while in F-1

status. 

Change of Employer Petition:  Foreign

nationals who have their employment terminated by a U.S. company

may try to find a new U.S. employer willing to sponsor them for

employment.  However, there are specific requirements that

need to be met for the various nonimmigrant categories, and

considering the decline in the economy and high unemployment in the

U.S., currently, foreign nationals may find this challenging. 

In order to have a U.S. employer sponsor the foreign national for

employment, a Petition for Nonimmigrant Worker (Form I-129) is

filed with USCIS.  There are filing fees that are required to

be paid. If the foreign national was in H-1B status with a previous

U.S. company, and a new U.S. employer is willing to sponsoring the

foreign national for the H-1B category, the foreign national may

begin work as soon as the petition is received at USCIS.  If

the new U.S. employer's petition indicates the foreign national

is changing status to another nonimmigrant category, the foreign

national will need to wait for the petition to be approved before

beginning work.

F-1 OPT and STEM OPT Students (90 and 150 days of

unemployment):  An F-1 student in his or her Optional

Practical Training (OPT) period that has their employment

terminated will need to report this to the Designated Student

Official (DSO) at their college or university. U.S. companies

employing an F-1 student in their STEM OPT period will need to

report changes in the employment of the F-1 student within 10 days

to the DSO.  F-1 students in their initial one-year period of

OPT may have up to 90 days of unemployment before triggering a

maintenance of status issue.  F-1 students in their two-year

STEM OPT period may have up to 150 days of unemployment before

triggering a maintenance of status issue. U.S. employers and F-1

students that have questions regarding how unemployment may impact

the foreign national and/or any OPT reporting obligations, may

contact the Student Exchange Visitor Program (SEVP) directly at

703-603-3400 or 1-800-892-4829 or e-mail SEVP at

sevp@ice.dhs.gov.  In addition, the following website has a

lot of information for F-1 students navigating the impact of the

COVID-19 pandemic on their status:  https://studyinthestates.dhs.gov/

Three Year Bar – Accrual of More than 180 Days of

Unlawful Presence, but Less than 1 Year:  If a U.S.

employer needs to terminate the employment of a nonimmigrant worker

as a result of the COVID-19 pandemic, this may result in the

nonimmigrant worker to begin to  accrue “unlawful

presence” in the U.S. at some point in the future.1

Foreign nationals and any dependent family members who accrue more

than 180 days of unlawful presence in the U.S., but less than 1

year, and depart the U.S., would be barred from re-entering the

U.S. for three years.  Naturally, foreign nationals would want

to monitor the accrual of any unlawful presence and make sure to

depart the U.S. before accruing more than 180 days of unlawful

presence in order to avoid being barred for three years.

(Note:  If the foreign national accrues more than 1 year of

unlawful presence and departs the U.S., the foreign national may be

barred for 10 years from entering the U.S.) In addition, while the

foreign national is accruing unlawful presence in the U.S., the

foreign national may be picked up by Immigration and Customer

Enforcement (ICE) and placed in removal proceedings at any

time.  However, given the lack of resources of the federal

government, ICE gives priority to those foreign nationals who

possess a criminal record.  Please note that even if a foreign

national does not accrue more than 180 days of unlawful presence,

an extensive accumulation of unlawful presence may negatively

impact the ability of the foreign national to receive a U.S. visa

in the future.

USCIS Discretion:  It is also important to

note that the USCIS has discretion and has stated that there are

special situations that require the exercise of it. See the

following: https://www.uscis.gov/humanitarian/special-situations

It is possible the USCIS may use its discretion during the COVID-19

pandemic in certain cases to provide relief to foreign nationals

negatively impacted by the pandemic.  More information and/or

guidance may be issued by USCIS with respect to its use of

discretion during the COVID-19 pandemic in the coming days and/or

weeks.  While the exercise of discretion by the USCIS is

something that may provide relief to foreign nationals who may have

maintenance of status issues caused by the COVID-19 pandemic, it

would not relieve employers of their wage liability in certain

cases.2

Footnotes

1 Note:  Unlawful presence begins to accrue upon

expiration of the foreign nationals I-94 record, a determination is

made by the USCIS that the foreign national is not maintaining

lawful status in the U.S., or a determination made by a U.S.

immigration judge that the foreign national is not maintaining

lawful status in the U.S.

2 Note:  U.S. employers that employ workers in the

H-1B, H-1B1, and E-3 nonimmigrant categories have strict wage

compliance requirements due to the attestations made in the Labor

Condition Application (LCA) required for these categories.  In

order for the U.S. employer to cut off its wage liability, the U.S.

employer would need to take the following action:  1) Issue a

termination letter to the H-1B, H-1B1, or E-3 worker; 2) Offer to

pay the cost of one return plane ticket home for the worker; 3)

Send a request to the USCIS to withdraw the petition; and 4) Send a

request to the U.S. Department of Labor to request withdrawal of

the LCA.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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