The spread of the novel coronavirus and COVID-19 has precipitated an unprecedented interruption to the United States, as many residents are forced to stay home, and businesses required to temporarily shutter their doors, or operate with a scaled-back workforce.  However, for businesses employing foreign nationals, “pausing” the employment relationship may not be practical.

While some foreign nationals are allowed unrestricted work in the U.S. (such as legal permanent residents, and certain individuals with employment authorization documents), foreign nationals on certain employment-based visas are limited by the scope of their visa – as are their employers.  An example of this is the H-1B visa, a temporary non-immigrant visa for specialty occupations. H-1B holders are permitted to work only for the approved employer.  Similarly, the approved employer is required to abide by specific labor conditions set forth in the initial petition, such as the obligation to pay the employee the required wage.  

Businesses contemplating any change in a sponsored employee’s wages, hours, or worksite should carefully consider the implications. H-1B employees typically cannot be “benched” or furloughed by the employer without pay. H-1B workers are usually limited to certain worksites, and converting a full-time employee to part-time work may require an amended petition. Moreover, H-1B employees who are laid off may not be eligible for unemployment, nor can they easily move to another job.  In fact, they (and their dependents) may have to leave the U.S. – if they even can – or face status violations that could impact their future ability to remain in the U.S.

If you are considering changes to your workforce that may affect your foreign national employees, we can help you navigate these issues.

Kristin A. Zech is an employment lawyer with Berenzweig Leonard, and leads the firm’s Immigration Practice.  She can be reached at 703-940-3788 or [email protected].