The coronavirus has forced employers to adjust to new economic realities and ever-changing guidance on health, safety and staying at home. Companies that employ immigrants and foreign nationals face even more challenges as decisions like furloughs, wage cuts and remote work create new compliance obligations or jeopardize a worker’s status in the U.S.
Changing immigration policies haven’t helped ease the minds of immigrants or their employers. A recent tweet from President Donald Trump prompted headlines about an “immigration ban” in response to soaring U.S. unemployment due to the COVID-19 pandemic.
“In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States!” Trump tweeted April 20.
While the tweet and subsequent media coverage caused anxiety for immigrants, the executive order that followed two days later was much milder than anticipated. The order suspends entry only for people seeking immigrant visas outside the U.S. who don’t already have a valid immigrant visa or other travel document allowing entry. The new policy will last for at least 60 days.
“This really just applies to a fairly limited class of folks who are outside, who are seeking an immigrant visa and who do not have one already stamped into their passport that would allow them to enter,” said Brad Hendrick, immigration law section leader at Caplan & Earnest in Boulder.
Hendrick noted that of nearly 140,000 people who gained employment-based lawful permanent resident status in the U.S. in FY 2019, only 28,733 of them obtained their immigrant visas outside the U.S. The vast majority of foreign workers seeking immigrant visas or green cards do so from within the U.S. and will not be affected by the order.
The order doesn’t apply to spouses and children of U.S. citizens, members of the U.S. military or their dependents, health care workers and medical researchers doing work related to COVID-19 or people pursuing certain investor visas along with a number of other groups.
“There are very broad exemptions that permit people to continue to enter the United States,” said Holland & Hart partner Roger Tsai. “I think, obviously, the tweet got a lot more attention and it probably gave a heart attack to a lot of immigrants and a lot of employers, but ultimately that impact is very minimal.”
Workers on non-immigrant visas like the H-1B, L1, TN are also not affected by Trump’s proclamation — at least for now. The order says that within 30 days, the secretary of labor, secretary of homeland security and secretary of state shall review non-immigrant programs and recommend other measures to “stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”
“It implies that something is coming for the temporary work authorization,” said Fisher Phillips partner Jocelyn Campanaro, adding that it’s hard to speculate what might be in a follow-up order, but employers should anticipate further guidance in the next month or so.
“I think what has occurred is that President Trump, probably due to lobbying efforts by larger employers and potentially tech companies, had scaled back the executive order to something that was relatively toothless,” Tsai said. But something much broader could be in the wings, he added. While nothing has been formally proposed yet, Tsai said the agencies might look at options like requiring higher visa fees or labor market tests to meet Trump’s mandate to protect jobs for U.S. workers.
In the meantime, there are other things employers should be mindful of, especially if they have staff on H-1B visas. Employers must generally file an amended petition any time there are “material changes” to a worker’s terms of employment. These include changes to an employee’s work location, the number of hours worked or job duties. COVID-19 has caused employers to make a lot of quick decisions — from cutting hours to implementing work-from-home policies — that could require extra paperwork or even threaten a visa-holder’s legal status.
H-1B workers, who typically have a bachelor’s degree and specialized skills, must be paid the prevailing wage for their industry. Campanaro recommended that employers thinking of cutting wages seek legal advice to make sure they and their H-1B employees remain in compliance and to make sure their decisions aren’t construed as discriminatory.
Employers will also want to consider the immigration status of their employees before furloughing them. “That does not work with the H-1B regulations,” Tsai said. “There’s something called an anti-benching provision — the idea that employers are not permitted to just pull aside an employee and ask them not to get paid and not to do work.” He added that H-1B workers are allowed to take medical leave related to COVID-19.
For companies that need to lay off workers, Tsai noted there are three steps an employer needs to take before they’re off the hook for paying an H-1B worker’s salary. First, they must notify U.S. Citizenship and Immigration Services in writing they are ending the employment relationship. They must also notify the employee of the termination in writing. Finally, they must offer to pay the foreign worker’s travel costs back to their home country, though many foreign employees waive this requirement if they plan to stay in the U.S., Tsai said.
While losing a job is tough for anyone, workers on non-immigrant visas like the H-1B or L1 typically have only a 60-day grace period to either wrap up their affairs and leave the country or arrange another way to stay in the U.S. legally. “The implications of a layoff for an immigrant are much more dire than they are for a typical U.S. worker,” Tsai said. Giving foreign employees as much advance warning as possible before a layoff can give them time to plan their next move, Tsai added, but he acknowledged many companies contemplating layoffs can’t afford to keep employees on the payroll for extra weeks or months out of kindness.
Hendrick said that while many employers have stopped moving forward on foreign hires, others are planning for better times ahead. Companies that are onboarding immigrant employees during the shutdown are able to take advantage of relaxed I-9 rules allowing them to review identity and work verification documents of new employees remotely.
There are still a lot of unknowns for employers who employ foreign nationals in terms of the economic outlook and policy pipeline. Employers should make sure they know which workers are on which visas and how big decisions like layoffs and furloughs can affect the status of those employees. “It’s good to ask the question before you take any actions … just to make sure that everybody is fully on board with what they’re going to do,” Hendrick said.
According to Campanaro, coronavirus has just added to the intensity of what has for years been “a really tough time in immigration.”
“It’s really hard to know what the administration is going to do next. I would anticipate in the next few months we’ll see attempts to curtail immigration further,” she said. Employers that plan ahead, file extensions as early as possible and have back-up plans for dealing with delays will be better equipped to handle whatever comes next.
“The same practices that employers have been using in the last few years to deal with the rapid changes in immigration are the things that are going to help them [now].”
— Jessica Folker