Covid-19 has changed the rules for travel, engagement and employment. Many companies have started to reduce wages and put staff on leave, and some companies have reduced hours or terminated employees.
Employers are facing difficult questions about how to proceed in light of Covid-19, including how to handle reduced schedules or furloughs for employees with work visas. For certain visa categories such as H-1B and E-3 visas, there are wage obligations that can make it more difficult to take steps such as reducing wages, or furloughing employees. However, employees on other work visas, such as the L-1, E-1, E-2, O or TN visa, are not subject to the same strict wage obligations.
If my employee is on an L-1 visa, can their hours be reduced? Can they work part-time?
The most important consideration for an L-1 employee is whether they are still performing the job duties that classify them as an executive, managerial or specialized knowledge employee. For example, if the employee was working as a specialized knowledge worker in an engineering role, the employer could not transfer the employee to another department to do purely administrative work and continue to employ them. However, if the employee’s hours and/or salary are temporarily reduced but the job duties remain the same and there is an expectation that the role will resume as normal in the future, the temporary reduction in hours or wages would be allowed. If the change to part-time work would be permanent, then the employer could consider filing an amended L-1 petition to update U.S. Citizenship & Immigration Services on the changes to the terms and conditions of employment.
What about unpaid leaves of absence? Can L-1 employees be furloughed?
L-1 employees are allowed to take voluntary leaves of absence, for example, for parental leave, sick leave, to take care of an ill family member or for other personal reasons. If your company authorizes a voluntary unpaid leave of absence this should be documented in the employee’s personnel file and the period of absence should be reasonable. If the leave of absence is an involuntary leave of absence required by the employer and the employee is no longer performing any work for the employer, this could be an issue, as the L-1 employee is arguably not maintaining their L-1 status. L-1 visa holders whose employment ends are eligible for grace periods of up to 60 days. If the L-1 employee is in the U.S. in their grace period and you are able to hire them back under the same terms and conditions as outlined in the L-1 application, this would arguably be permitted as long as the underlying L-1 petition was still valid.
Can I decrease L-1 employees’ salaries?
Immigration regulations require that companies file amended petitions to reflect any material changes in the terms and conditions of employment or the alien’s eligibility as specified in the original approved petition. The salaries of L-1 employees are disclosed in the L-1 petitions that are submitted to USCIS and USCIS may look at the salary as one of the factors when assessing whether the employee qualifies for the L-1A (manager/executive) visa or L-1B specialized employee visa.
For example, if your employee was coming to the U.S. as an executive, and his/her salary was $30,000 per year, USCIS could question whether he/she is coming to the U.S. to perform executive duties. However, in contrast to the H-1B visa, employers sponsoring L-1 employees are not required to submit a Labor Condition Application (“LCA”) for the L-1 visa and are not required to pay the L-1 employee a particular wage.
What happens if your company indicated in the L-1 petition that it will be paying an L-1 employee $150,000 but now needs to decrease the employee’s salary?
As discussed above, there is an argument that if the decrease in the employee’s salary is only temporary and the job duties remain the same, this is not a material change and therefore does not require the employer to file an amended L petition. However, if the change in salary is long-term or permanent and would be material (e.g. the employee’s salary decreased 80%), the company should consider filing an amended petition.
You can find key immigration information related to the Corona Virus below.
- Top 10 Covid-19 Immigration Questions
- Implications of Layoffs for employers who have employees on H-1B and/or E-3 Visas
- USCIS announces flexibility for request for evidence (RFE) and Notice of Intent to Deny (NOID)
- Information on Consular closures during Covid-19
- USCIS issues guidance on Remote 1-9 verification during Covid-19
- USCIS office closures due to Covid-19
- Can I apply for Unemployment Insurance Benefits while on a Visa?
- Canada/U.S. Border Closures
- USCIS announces temporary suspension of premium processing
- What can you do if your ESTA is running out?
- Travel Ban for Europe
- Stimulus Bill (All 800 pages)
- Information on Small Business Loans related to the Stimulus package
- USCIS to accept scanned/reproduced signatures instead of “wet” signatures on immigration petitions and forms
- Implications of furlough or termination if you are on a TN visa
- Does the Stimulus Bill impact my immigration status? Is there a public charge concern?
- Understanding the Stimulus Package for Small Businesses and the Paycheck Protection Program
- Small Business Administration COVID-19 Loans
- USCIS to Reuse Previously Submitted Biometrics to Process Work Permit Applications
- USCIS Temporary Office Closure Extended Until at least May 3
- SBA Loans and Public Charge Rules – Paychecks Loan Program and Economic Injury Disaster Relief Loan Program
- I am in the U.S. on H-1B visa and my employment was terminated due to the Corona virus outbreak.
- I am in the U.S. on an E-2 visa, can I apply for loans under the Stimulus Bill?
- Does Covid-19 impact my obligations as an H-1B or E-3 Employer?
- I am in the U.S. on E-2 employee visa. Can I apply for unemployment benefits due to the Coronavirus?
- I want to decrease the salary of my H-1B employee, what is the process?
- I am in the U.S. on a non-immigrant visa and my employment was terminated due to the Corona virus outbreak.
- I am on an E-2 visa but cannot go back to my Consulate to Renew, what can I do?
- I had to terminate the employment of an H-1B employee due to the Corona virus outbreak. What are my obligations as an H-1B Employer?
- If I get laid off or furloughed am I still eligible to get a green card?
You can set up a consultation by clicking the link below.
To find out more about our services and fees contact Scott Legal, P.C.
This website and blog constitutes attorney advertising. Do not consider anything in this website or blog legal advice and nothing in this website constitutes an attorney-client relationship being formed. Set up a one-hour consultation with us before acting on anything you read here. Past results are no guarantee of future results and prior results do not imply or predict future results. Each case is different and must be judged on its own merits.