Ask Sophie™: What is required of employers laying off foreign workers?

Here’s another edition of “Ask Sophie™,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

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Dear Sophie:

Fallout from COVID-19 is forcing our startup to downsize. What legal requirements do we need to consider if we’re laying off foreign-born employees or scaling back their hours?

— HR Manager in San Mateo

Dear HR Manager:

Thank you for your question; a lot of people are going through the same thing. Keep in mind that terminating an employee that your company sponsored for a visa or green card can have ramifications for future hiring.

Given that, your company should consider its labor demands post COVID-19 and long-term strategic goals before conducting any layoffs. Also please keep in mind the chatter that the Trump administration might be considering temporarily halting the issuance of new work visas, such as the H-1B and TN, and ending OPT (Optional Practical Training) program for F-1 student visa holders, so tapping into these programs may be challenging for a while. However, it’s very unclear if, when and how this would actually happen.

What your company is required to do — or should do — will depend on:

• Whether you are laying off the foreign-born employee, reducing the employee’s hours or changing the employee’s duties;
• The immigration status of the foreign-born employee;
• Whether your startup sponsored the employee’s visa or green card;
• Where the individual is in the green card process;
• Other potential individual factors.

Your company is not required to notify USCIS when laying off foreign-born employees in particular immigration matters, such as:

• Employees who already have a green card (are permanent residents);
• Pending green card self-petitions (such as for EB-1A or EB-2 National Interest Waiver green cards), where your company did not sign the I-140 petition;
• Situations where the employee possesses a work permit unrelated to employment sponsorship. Many individuals, including Dreamers, asylum applicants and the dependent spouses of some visa holders are eligible for work permits (Employment Authorization Documents or EADs).

If you want to go the extra mile for an employee who you recently sponsored to become a permanent resident through your company, you could write them a letter explaining the layoff is due to COVID-19. Please check this with your employment and corporate counsel, but if it’s OK with them, the benefit could be for your employee to be able to demonstrate to USCIS during a future application that their green card wasn’t obtained by fraud. A green card sponsorship is based on the company asserting that they need to offer a permanent position to this individual. If your employee later applies for citizenship, USCIS can delve into their history to see if fraud was committed during the green card process. Having a letter from your company would be evidence the individual could submit to explain why what was expected to be a permanent position was in fact eliminated.

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If any changes are made to an E-1, E-2, E-3, H-1B, L-1, O-1 or TN visa holder’s duties, wages or work hours, or if the employee is working from home or alternative location that is far from the regular worksite, the company must file an amended petition for nonimmigrant worker (Form I-129) with USCIS. For E-3 or H-1B visa holders, your company may also be required to file a new Labor Condition Application (Form 9035) with the Department of Labor for approval prior to filing an amended petition with USCIS. Be aware that certain posting requirements come with filing a new Labor Condition Application even if the employee is working from home. It’s good to talk to your immigration attorney about each specific employee’s situation.

If an employer lays off an E-3 or H-1B visa holder, the company must notify the government of the termination. No notification is necessary for other visa holders. Your attorney can support you with submitting this letter. Employers should not waste any time with this notification when it comes to ending an H-1B visa holder’s employment because they may be subject to paying unpaid wages after the employee is laid off through the end of the petition period.

Employers have an obligation to provide transportation — either an airplane ticket or cash — for H-1B and O-1 employees back to their last residence abroad. This does not include transportation for family members or personal belongings.

If an individual on an F-1 student visa who has been working under OPT is laid off, that person must leave the U.S. before racking up more than 90 days of unemployment. F-1 students working under a STEM OPT extension are allowed 150 days of unemployment, which includes any days accrued while on OPT. If an F-1 student volunteers or interns without pay for at least 20 hours per week in their field of study, this time would not be counted as unemployment days. But please keep in mind that labor law regarding unpaid internships is pretty strict, so check with your employment attorney before offering any volunteering opportunities.

If any of your employees are in the I-485 adjustment of status process awaiting their interview for a company-sponsored green card, know that they may be able to transfer their green card process to another company offering them a “same or similar position” if their I-485 has been pending with USCIS for at least 180 days.

Also, in most circumstances, if USCIS has approved the green card petition for the individual, that individual can take the priority date associated with that petition with them to another job change to a green card once a green card number becomes available. That’s especially important for individuals born in China and India who face decades-long waits for a green card number.

If you conduct layoffs and then in the future want to start the PERM green card process for any employees in related positions, please know: for the six months after the layoff, you must consider previously laid-off U.S. workers in the PERM process and you would need to document the results of that search to fill the position.

Because of the complexity and risks associated with the process of laying off international workers or changing their duties, pay or working conditions, I recommend consulting an experienced immigration attorney for all of your corporate immigration questions to support your company and your employees.

All my best,

Sophie

Have a question? Ask it here; we reserve the right to edit your submission for clarity and or space. The information provided in “Ask Sophie™” is general information and not legal advice. For more information on the limitations of “Ask Sophie™,” please view our full disclaimer here. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms; if you’d like to be a guest, she’s accepting applications!