As businesses across the country struggle to make payroll during difficult times, layoffs and furloughs are becoming increasingly common. Work visa holders are in a particularly difficult position, as their legal status is frequently tied to working full-time for a specific employer and being paid a full-time wage. Below we have summarized the impact loss of work or wages will have on different types of work visa holders.*
Please note this is a high-level, general summary only. Your individual circumstances may have a dramatic impact on your options, so please discuss with an attorney before taking any action!
In this situation, you are still employed, but are being paid less. The impact of a wage reduction will vary widely depending on the exact type of visa you have.
- LCA-Based Visas including the E-3, H-1B, H-1B1. To obtain one of these three visa types for an employee, an employer must file a Labor Condition Application (“LCA”) with the Department of Labor in which they commit to paying a specific wage. If your wage drops below that promised on the LCA, your employer is in violation of the law and you are out of status.
- Other professional work visas, including the E-1, E-2, L-1, O-1 or TN. While these visa types do not include stringent requirements regarding an exact salary like the LCA-based visas do, if your salary drops significantly, this may be considered a “material change” to your employment which would require your employer to file an amended petition notifying USCIS of the change.
- Pre-completion or first-year post-completion OPT. Because there are no wage requirements for pre-completion OPT or your first year of post-completion OPT, a wage reduction will not impact your status.
- STEM Extension OPT. STEM OPT workers must be paid a wage that is commensurate with that paid to US employees of similar skill in similar positions at the same employer. As long as it is applied equally to you and your US counterparts, a wage reduction will not interfere with your status.
Furlough or Layoff
In this situation, your employer has temporarily stopped your work and salary, or has permanently terminated your employment. A temporary furlough and a permanent termination have identical immigration consequences.
- Professional Visas, including the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN. These visas are all tied to active work for a specific employer. If your employer puts your job on hold and stops paying you, even temporarily, for immigration purposes this is equivalent to a termination of your employment, and you are out of status. You have a 60-day grace period,** which will begin on your first day without work or pay. If you are rehired for your prior position during this 60-day grace period, you can simply resume work. If you will not be able to start work with the same employer during the 60-day period, you can use this time to wrap up your affairs and leave the country, or file an application to change employers or to change to a different status. Given that finding a new employer in the current climate will be difficult for many people and worldwide travel restrictions may also prevent leaving the US, many people may have no choice but to file an application to change to B2 visitor status during the 60-day grace period.
- Post-Completion OPT. Unlike the professional work visas described above, OPT holders do not immediately go out of status when work with a particular employer stops. First-year OPT holders are allowed up to 90 days of unemployment during this first year, and STEM Extension OPT holders are allowed to accumulate a total of 150 days (this total will include any days accrued during the first year). If you are able to resume your employment or find new employment prior to reaching this cap, your status will not be impacted. Once you surpass your unemployment cap, however, you will be out of status and will not have the ability to resume OPT in the future.
We hope this information is of some help during these uncertain times. If you would like to further discuss the ramifications of changes at work on your immigration status, don’t hesitate to reach out to set up a time to speak with one of our attorneys here.
*This article discusses measures that an employer may take due to business distress. It does not describe the impact of coronavirus-related sick leave, whether paid or unpaid. Medical leave is permissible for all work visa holders, and should be discussed with an attorney.
** You are only granted a grace period once per entry. If you used your grace period after leaving a prior position and have not traveled internationally since then, you do not have a grace period. If you have questions about whether or not you have a grace period, you should discuss the details of your situation with an attorney.