Many employers have responded to the COVID-19 pandemic by adopting on-the-fly remote work policies, and, in extreme cases, laying off and terminating employees, leaving their H-1b employees in limbo. Here we compiled some answers to frequently asked questions.
If a company shuts down due to COVID-19 and places an H-1B visa holder on an unpaid leave of absence than the visa may still be valid and there may not need to be a refiling for a new visa if less than 60 days. During that time, the H-1B visa holder could petition for another company in a similar situation and be able to work upon receipt. Remember a new LCA and notice of posting must be filed first. In some instances, the H-1B visa holder may be able to obtain certain benefits and not become a public charge. See below for further discussion.
In the unfortunate event that an employer has to terminate an H-1B worker (as a result of COVID-19 or otherwise) before the period of the individual’s approved authorized status expires, the termination has to be “bona fide.”
According to the DOL, a bona fide termination is made by notifying both the employee and USICS, in writing, that the employment relationship has ended. The notification must also disclose that arrangements have been made to cover the cost of return transportation to the worker’s country of citizenship or permanent residence.
If the termination is not bona fide, then the employer may be obligated to pay back wages and arrange return transportation until a bona fide termination occurs. However, if the H-1B worker finds new H-1B employment within the 60-day grace period, the employer’s duty to pay could end.
No, the employee does not immediately fall out of status if laid off or terminated. There is a 60-day grace period under the “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.” The grace period allows the H-1B worker to find another sponsoring company that will file an I-129 in conjunction with an extension of status on their behalf. USCIS can shorten the grace period if the H-1B visa holder is not actively seeking new sponsorship.
It should be pointed out that only one grace period can be extended per visa validation period. Furthermore, if the H-1B worker remains in the U.S. and the validation period expires before the 60 days, they will be considered “out of status.”
Additionally, an H-1B worker is entitled to the same benefits as U.S. citizen employees. For instance, if a company’s termination procedures include severance packages, the H-1B worker is also entitled to the severance package.
Typically, a foreign national who has lost a job (due to COVID-19 or otherwise) and applies and receives certain state or federal general assistance runs a risk of becoming a public charge and being denied a visa in the future.
However, in response to COVID-19 USCIS issued a statement clarifying that “if the alien is prevented from working or attending school, and must rely on public benefits for the duration of the COVID-19 outbreak and recovery phase, the alien can provide an explanation and relevant supporting documentation. To the extent relevant and credible, USCIS will take all such evidence into consideration in the totality of the alien’s circumstance.”
In cases where the visa holder’s employer, school, or university has voluntarily shut down operations to prevent the spread of COVID-19 or there are “disease prevention methods such as social distancing or quarantine” the visa holder may a statement with his or her application for adjustment of status to explain how they have affected the individual in relation to USCIS public charge inadmissibility determination.
A visa holder placed on unpaid leave may be able to receive state-funded benefits and some but not all federal benefits (see the specific list and exceptions) and not be deemed to have been out of status or a public charge.
Prohibited federal funds are:
Exceptions to prohibited federal funds are:
The list of public benefits considered in the public charge ground of inadmissibility includes most forms of federally funded Medicaid (for those over 21).
However, the USCIS website states that exceptions include “CHIP, or state, local, or tribal public health care services/assistance that are not funded by federal Medicaid.”
The Public Charge rule does not restrict access to testing, screening, or treatment of communicable diseases, including COVID-19.
Per law, DHS will not consider the following Medicaid benefits received:
In this situation (COVID-19/Coronavirus), the beneficiary should keep all medical records and obtain letters from employers informing them they cannot work because of COVID-19 as proof as 2020 immigration forms include these types of questions.
It is important to bear in mind that receipt of public benefits is only one consideration of a public charge inadmissibility determination among a number of factors and considerations in the totality of the visa holder’s circumstances over a period of time with no single factor being outcome determinative.
Additionally, one of the factors in denying a green card application under public charge is if an individual is on unemployment for 12 months out of any 36 month period, which most likely won’t be in the situation.
Important: As of publishing, USCIS has provided limited instruction on how filing for unemployment and Medicaid during the national COVID-19 emergency will be forgiven. Given the circumstance, it appears that USCIS may be lenient in taking the global COVID-19 crisis into account on a case-by-case basis.
We recommend that employers and employees consult with OnlineVisas to discuss any such changes and the ensuing impacts on foreign-national employees.
About the author: Jon Velie has practiced Immigration law since 1993. He is CEO of OnlineVisas.com., a revolutionary Immigration platform and global Immigration network. Jon is an Amazon number one best-selling author of H1B Visa: Application & Approval, is regularly covered by major media and has won a number of international awards. Jon can be contacted at firstname.lastname@example.org or 405-310-4333 office or 405-821-5959 mobile.