In celebration of a brighter future, I am starting a new section dedicated to answering common business immigration questions that I receive from our clients.
This way, you can open the newsletter and see what other similarly situated professionals want to know — answers to questions that will also help you!
Here is the first question and answer, based on ongoing shifts on our workforce:
Common Business Immigration Question #1: What Is the Impact of Furloughs on Our Nonimmigrant Employees?
Furloughs (or unpaid leave) for foreign workers in certain nonimmigrant status are problematic. For example, furloughs are prohibited for those on H-1B, E-3, and H-1B1 status because of their LCA prevailing wage requirement.
Currently, these workers can only go on unpaid leave if they are on FMLA or other approved and protected leave, such as those requested by the employee for personal reasons (e.g. the birth of their baby, health issues, or others). Otherwise, these nonimmigrant employees need to be paid at or above the prevailing wage and cannot have their salary reduced below that amount.
Furloughs can also be problematic for workers on E-1, E-2, L-1, O-1, and TN status. Because although there is no underlying LCA requirement about wages and/or hours of employment to be met, their immigration status is tied to their employment. So to remain in valid status, they must be employed by the employer that sponsored them.
Lack of USCIS Guidance
There is no current USCIS guidance about how a furlough impacts workers in these statuses. However, if these employees are furloughed, they should be treated as active employee. They need to demonstrate a valid employer-employee relationship.
Additionally, the furlough time should be no more than 60 days. This is the grace period that allows employees to maintain status despite a cessation of employment. If employers choose this approach, it is important to note that the 60-day grace period can only be used once.
How Might Furloughs Impact F-1 OPT Students?
Furloughs can also have an impact on F-1 OPT students who are working pursuant to that status. Students on OPT have a maximum of 90 days of unemployment. Students on STEM OPT have a total of 150 days of unemployment, which includes days accrued while on OPT.
F-1 students should monitor these dates carefully and work with their designated student officer (DSO) to ensure they are maintaining status. Moreover, any material change to the STEM OPT training program needs to be reported to the school.