I am in the U.S. on an O-1 visa. Can my employer ask me to work part-time? Can the employer reduce my salary? When do I have to leave the U.S. if I’m fired?

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.

The O-1 nonimmigrant visa is for individuals who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who have a demonstrated record of extraordinary achievement in the motion picture or television industry and have been recognized nationally or internationally for those achievements. For more information about O-1 visa petitions, please click here.

This blog post will only analyze the situation when a U.S. employer filed an O-1 petition on your behalf (e.g. an interior design company where you are currently working full-time filed an O-1 petition on your behalf in 2018).

Please note that you can be also sponsored for the O-1 visa by a U.S. agent. This is a great option for workers are traditionally self-employed or workers who use agents to arrange short term employment with numerous employers.

Can the employer reduce my salary? Does the company have to file an amended petition to USCIS if it reduces my salary?

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 salary of O-1 workers are disclosed in the O-1 petitions that are submitted to USCIS. To qualify for an O-1A visa, the petitioner (in this case the U.S. employer) has to demonstrate that the O-1 worker either received a major, internationally recognized award or he/she meets at least 3 of these criteria. To qualify for an O-1B, the petitioner has to demonstrate that the O-1 worker was either nominated or received a significant national or international award or he/she meets at least 3 of these criteria.

If the petitioner argued in your original O-1 petition that you qualify for the O-1 visa based on the fact that “you will command a high salary or other remuneration” for the work you will be doing in the U.S., then the reduction in your salary could be problematic, as arguably you would not qualify for the O-1 visa anymore. In such case, it is advisable that the petitioner files an amended petition with USCIS and demonstrates how you qualify for the O-1 visa – the petitioner will have to prove that you meet 3 of the listed requirements.

If the petitioner did not argue that you qualify for the O-1 visa based on the fact that you will command a high salary and your salary was reduced just slightly, then there is an argument that there is no material change in your eligibility for the O-1 visa and there is no material change in the terms and conditions of your employment. In situation where the decrease in your salary is only temporary, your job duties remain the same, and you still qualify as an extraordinary, there is an argument that there is no material change in your employment and the company does not have to file an amended O petition. However, if the change in the salary is long-term or permanent and the reduction in your salary is material (e.g. 80%), the company should consider filing an amended O petition with the Service Center where the original O petition was filed.

Can the employer reduce my working hours? Can I work part-time for some period of time?

If you are still performing the work that was described in your original O petition in your field of expertise, you still meet the evidentiary criteria for the O-1 visa (see above), the reduction of hours is only temporary and there is an expectation that the role will resume as normal in the future, the reduction of hours would likely be allowed. However, if the change to part-time work would be permanent, then the O employer should consider filing an amended O petition to USCIS.

My employment was terminated. When do I have to leave the U.S.? Is the employer required to pay me for the reasonable costs of transportation back home?

If the employer terminated your employment, then you will have a 60 day grace period to leave the U.S.

If your employment was terminated for reasons other than voluntary resignation, the employer is liable for the reasonable cost of return transportation to your last place of residence prior to your entry into the U.S. on O-1 visa.

You can find key immigration information related to the Corona Virus below

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