Can Employer Terminate H1B Employee Due To #Coronavirus? Is Unpaid Leave A Better Option Or Salary Cut?

The Covid-19 pandemic has not only affected the tech sector but also has given a massive blow to the world economy, resulting in massive layoffs and unemployment.

Amidst the poor world economy, the US economy is no better. Economic experts fear massive layoffs in various sectors of the American economy due to the current economic distress that is only going to deteriorate in coming weeks and months.

USCIS Inundated with Queries Realted to H-1B Workers

Fearing massive layoffs in America due to the degrading economy, the H-1B visa holders have demanded the Trump administration to extend their permissible post-job loss limit to stay in the US from the existing 60 to 180 days.

As per the current federal rules, H-1B workers have a 60-day grace period of unemployment time during each authorised validity period to stay in the USA legally. They must find new work within 60 days; otherwise, they have to leave the country.

Immigration attorneys have already been burdened with queries from clients, regarding the various intricate issues related to their H-1B employees.

Can we furlough (bench) our H-1B employees? Or terminate their services? Can a salary cut be offered to them? Or can they go on unpaid leave?

These are some of the many issues that employers who have hired migrant workers are grappling with.

How Has USCIS Come to Resolve these Queries

The first question asked: Can we furlough our H-1B employees, put them on the bench?

The unanimous reply from immigration experts is a No! It believes that if these employees are put on bench, they’d have to be paid the most basic stipulated wages, even for their unproductive time. This becomes a costly affair for companies already battling through the ongoing slug economy.

So, is terminating employment the best answer?

Technically, an H-1B employee can be terminated. The company needs to fire the employee and revoke their H-1B after offering them a one-way ticket back to their home country.

Is a salary cut the next best option?

The Department of Labour (DOL) has no problem with a salary cut, provided the H-1B employee’s minimum wage is maintained. However, this can be tricky and would also involve compliance with local laws, attorneys must be involved in such an exercise.

Another way out can be assigning the H-1B employee on part time work with a corresponding pay reduction. However, to do this, an amendment must be filed with the USCIS.

Another solution is, if the H-1B employee seeks personal time off. In such a situation, they are allowed to remain in H-1B status. This is not considered as a furlough and the employer does not need to pay the salary for this leave period.