COVID-19 Immigration FAQs (Part 1)

Can Non-Immigrant Workers be Furloughed? Laid Off?
H-1B employees must be paid their wages even in instances of plant closures, furloughs, holidays, or other periods of nonproductive time. This requirement applies even if U.S. workers are not paid during such times. Failure to do so may result in a Department of Labor (DOL) investigation and a monetary award to the employee. An employer’s obligation to pay its H-1B employees, even for nonproductive time, ends only with bona fide termination. A bona fide termination requires that both the employee and USCIS be notified in writing that the employment relationship has ended, and that the employer has made arrangements to cover the cost of the worker’s return transportation to his or her country of citizenship or permanent residence.

Unlike the H-1B category, there are no wage obligations for L-1 or TN employees, and the DOL is not involved in these processes. However, these workers do still need to be careful about periods of unemployment.

To further enhance job portability, the USCIS has established a grace period of up to 60 consecutive days during each authorized validity period for individuals in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications. This grace period allows high-skilled workers in these classifications, including those whose employment ceases prior to the end of the petition validity period, to more readily pursue new employment should they be eligible for other employer-sponsored nonimmigrant classifications. By the end of this grace period, nonimmigrants in classifications outlined above must depart the United States, change to another nonimmigrant category, or have a new employer file a nonimmigrant petition on their behalf.

F-1 students must report a furlough/layoff to their school. F-1 regulations state that students who have been authorized for post-completion OPT must leave the U.S. before they accrue an aggregate of more than 90 days of unemployment. No 60-day grace period is allowed. Days of unemployment will be counted from the start date indicated on the OPT. The student must report periods of unemployment in the SEVP portal. All F-1 status questions need to be addressed to the school that sponsored the status.

Can Non-Immigrant Workers Apply for Unemployment Benefits?
No. Employees in H-1B, L-1 and TN status are NOT eligible for unemployment benefits because their employment is TIED to a specific employer. Likewise, F-1 students are not eligible as they are not able to work for just any employer. Under the laws of all States, an applicant must be “able and available” to work in order to be eligible for unemployment compensation. In addition to meeting other state availability requirements, an individual must be legally authorized to work in the United States to be considered “available for work.” Therefore, a foreign national without current, valid authorization from USCIS to work for any employer is not legally able and available for work, and not eligible for benefits. Permanent residents (green card holders) are eligible. Those in H-4/L-2 status who hold an employment authorization document (EAD) may be able to obtain benefits.

Does a Nonimmigrant Worker Need to Post the Labor Condition Application at her Home if Working Remotely?
Some immigration attorneys are advising that Labor Condition Applications (LCA) for H-1B workers be posted at their home for 10 days to permit remote work. We don’t strongly feel that this is the case for individuals working at home from a standard commuting distance from their regular work location. We advise that the LCA needs to be posted at an employee’s home ONLY if the home work location falls outside of normal commuting distance.

The regulations do not define “standard commuting distance.” They do explain that any work location within the same Metropolitan Statistical Area (MSA) or Primary Metropolitan Statistical Area (PMSA) of the normal place of employment is deemed to be within normal commuting distance. This does not necessarily mean that areas outside the same MSA or PMSA are not within normal commuting distance – the assessment will need to be made on a case by case basis.

For reference, in Michigan: Macomb, Oakland, St. Clair and Wayne counties all fall within the same Metropolitan statistical area (MSA). If anyone is working outside of those counties or outside of a normal commuting distance, then a new LCA and H-1B would be needed.

If any H-1B workers are insistent upon posting at home, they are all in possession of copies of their LCAs and could post if they wanted for peace of mind.

For more support and information relating to COVID-19, please visit the Kerr Russell COVID-19 Resource Center. If you have questions relating to this article or other immigration matters, please contact a Kerr Russell attorney.

Kate M. McCarroll has extensive experience in employment-related immigration law, including inbound/outbound immigration, Department of Labor/ Department of Homeland Security audits and I-9 compliance training. Kate has also handled matters involving asylum proceedings,family-based immigration, and criminal and inadmissibility issues.

Miroslava Orduño Rincón has extensive employment-related experience concerning U.S. non-immigrant and immigrant petitions for large international clients. She also processes outbound visitor and work visas, family-based petitions, and naturalization.

Robert S. Anderson counsels and represents clients in the full spectrum of immigration legal issues as applied to their workforce and staff, including all aspects of the international movement of personnel for local, national, and international companies.

Other posts to consider:

• COVID-19: Immigration Impact – Update (Part 2)
• Employer Obligations Arising From COVID-19 (Part 2)
• Paid Leave Under The Families First Coronavirus Response Act