COVID-19 Workforce Decision Making: Don’t Forget Your Foreign National Population

Given the current pandemic, companies are tackling an array of business-critical decisions ranging from workplace safety measures to remote working parameters to pay cuts, furloughs and reductions in force. In this mass of competing priorities, employers of foreign national employees should be careful not to overlook any unique impact that their decision making can have on their nonimmigrant employee population and corresponding compliance requirements that may be triggered. The analysis and impact will be highly contingent upon what type of work authorization and nonimmigrant status the employees are working pursuant to (for example: H-1B, O-1, L-1, TN or F-1 OPT EAD holder), and what the corresponding parameters of their status are.

• Switch to Remote Working: A common workforce measure being implemented given stay-at-home orders and quarantines is a move to telecommuting. While this may drive a host of employment considerations ranging from IT to employee isolation mitigation, employers should closely assess whether this would drive any further action from an immigration standpoint. For example, the popular H-1B visa for specialty occupation workers is office location specific. Therefore, employers will need to assess whether the move to a remote workspace would necessitate the need to file a new Labor Condition Application or H-1B amendment with U.S. Citizenship and Immigration Service (USCIS). This analysis will likely hinge on whether the H-1B employee is now working from a location that is within a “normal commuting distance” of the original workplace and whether there has been a significant change to their job duties.
• Change in Work Hours / Furloughs: A general principle for many nonimmigrant employment statuses is that “material changes” to working parameters must be reported to USCIS. Therefore, if there is a substantial change to the working hours of an employee in O-1 or TN status for example, this may require filing an amended petition to USCIS reflecting this change. Notably, H-1B status has strict pay requirements and the employer cannot temporarily cease or decrease pay without having duly filed an H-1B amendment with USCIS reflecting this change. Typically, it would take at least one to two weeks to prepare such an amendment filing.
• Layoffs: Some nonimmigrants rely on employment as their basis to lawfully remain in the U.S. Accordingly, in certain circumstances a layoff may require them to depart the country. For many nonimmigrant statuses, employees may be afforded a grace period to temporarily remain in the U.S. in order to seek another employer, change into another nonimmigrant status, or wrap up their affairs. From the employer’s standpoint, it is important to verify whether there are any special considerations when terminating a nonimmigrant employee. For example, to terminate an H-1B visa holder, apart from notifying the employee, the employer must also notify USCIS and offer to pay for the employee’s return travel to their last country of residence. Failure to meet these requirements can leave the company at risk, including for back wages.
• Employee Retention: For existing foreign national employees, even if no disruptions to employment are anticipated, it is important to be aware that many work authorizations are granted for finite periods of time and require renewals in due course. For any renewals or immigration processes that require travel outside of the U.S., employers should expect complications to arise given constantly evolving travel restrictions as well as potential Consulate and Embassy closures or limited appointment availability. Even for immigration statuses that can typically be renewed without the need for international travel, employers should drive renewal processes expeditiously given logistical issues that can be encountered with paper filings amid quarantines.

Future Hiring Needs: Similarly, employers should carefully consider and plan for any imminent nonimmigrant hiring needs, endeavoring to expedite the petitioning process to any extent possible in order to mitigate the risk of unanticipated delays. Indeed, a proclamation barring the entry of certain individuals seeking to enter the U.S. as immigrants becomes effective today.  While relatively narrow in scope, employers cannot discount the potential for additional restrictive measures to be introduced in the coming months.