NY Daily Record Since 1908
The COVID-19 pandemic has spurred changes, and challenges, across nearly every industry and sector worldwide. As workers come to grips with pay cuts, furloughs and layoffs at both non-essential and essential businesses, immigrants must also deal with the very real possibility of having to leave the U.S. and return to their home countries.
“We have thousands and thousands of workers here on H-1B visas that service engineering, technology, any profession that requires at least a bachelor’s degree. That’s really the category of H-1B workers,” said L.J. D’Arrigo, partner and co-leader of Harris Beach PLLC’s immigration practice. “If they’re laid off that means they’re out of status and they’re here illegally, so they would have to essentially return to their home country if they’re not working full time, according to the terms and conditions of the visa petition.”
The H-1B is a temporary visa category that allows employers to petition for highly educated foreign professionals to work in specialty occupations that require at least a bachelor’s degree, according to the American Immigration Council. Jobs in STEM and medical sciences fields usually qualify. Typically, the initial duration of an H-1B visa classification is three years, which may be extended for a maximum of six years.
“We get panicked calls from the foreign national employees and employers that want to help them and be able to keep them, but their business can’t support them and they can’t pay them,” D’Arrigo said. “That’s a chronic problem we’re seeing.”
And for H-1B visa holders and their employers there are prevailing wage requirements, so employers are by law required to pay a foreign worker a set amount as determined by the government, and if they fall below that there are severe wage and hour violations and labor law penalties that can apply, D’Arrigo added.
“If an employer cannot sustain that employee and they have to lay off then that employee becomes out of status and they have to return to their home country,” he explained. “In some cases there’s no grace period so they would immediately have to take steps to leave.”
H-1B visa holders also likely are not eligible for unemployment benefits or the most recent stimulus package that was signed a couple of weeks ago.
“The problem with H-1B workers and most individuals on visas is that under state law unemployment requires that they be immediately available for work, and since they’re on a visa tied to one particular employer, they’re not,” said Michael Freestone, an immigration attorney with Tully Rinckey PLLC. “They’re not available to work so they don’t qualify for unemployment. So employers are faced with a difficult position, and the workers are too.”
Anytime there is a change to an H-1B visa holder’s employment status a petition must be filed with U.S. Citizenship and Immigration Services (USCIS), Freestone said.
“For individuals who are temporarily benched, they still have to be paid,” Freestone said. “If they’re just laid off then their status ends. If there’s a big change to their employment then you have to file a new amended petition with USCIS before you can enact those changes. And that process takes some time to get H-1B petitions together to change someone’s status entirely.”
If a business division is made remote and the work site changes, there is also the potential for refiling of H-1B visas to reflect that change as well, he noted.
“The way the immigration system is set up, it’s not as flexible for dealing with pandemics,” Freestone said. “There’s been some minor allowances for pandemic-related changes from the USCIS and the (U.S.) Department of Labor. But overall it’s pretty minimal and the situation on the ground has immigration attorneys scrambling to keep up with changing conditions for all of these people.”
Because the process is all paper-based and not electronic, rapid changes to the workforce as a result of the COVID-19 pandemic are next to impossible to handle as swiftly as the situation necessitates, Freestone said. USCIS recently has allowed for scanned signatures on some documents rather than the longstanding requirement of original signatures, which helps in certain circumstances.
Freestone said what he and other immigration attorneys are doing right now is trying to buy their clients time. But there are few options.
“If an employee has been here for many years on a visa—they come here on a student visa, they go through school and then transition to an H-1B, so it can be 10 to 15 years that somebody’s here, so to have to wrap up your affairs in a matter of days and leave the U.S. is huge—what we’re doing is we’re filing applications to change their status from H-1B to a visitor visa,” he explained. “At least that’s going to buy them some time to leave or maybe wait out the economy and see if there’s improvement and they’re able to be hired back.”
For individuals in the U.S. on the L-1A visa, furloughs and closures mean a return to their home country, Freestone said.
“For Ls, they’re out of luck and need to change their (immigration) status to something else,” he said. “Their status is over when they’re no longer employed.”
The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the U.S., according to USCIS. The classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the states with the purpose of establishing an office.
Freestone said immigrants and their attorneys need to act sooner rather than later to ensure continuity.
“One thing that’s definitely been apparent is the Department of State is taking these things really seriously. Embassies are monitoring their situation on the ground and in all the different countries so if you have people that are stuck abroad or people that want to leave, they should use the Department of State as a resource for guidance on when borders might potentially start opening up,” Freestone said. “But in the meantime, people really need to monitor expiration dates of visas and statuses and be cognizant of when they need to file, and if necessary, think about emergency filings to change their status to a tourist or something like that.
“Better to seek forgiveness from USCIS and change your status to a tourist or a business visitor rather than overstay a visa or something along those lines,” he said.
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Presumably they understood that the job was “temporary” when they accepted it.