Thursday, May 7, 2020

Can H1B employees be furloughed or terminated citing COVID-19?

As we know the world has changed in the last few months. Wearing face masks in public, working from home and maintaining social distancing is the new normal. COVID -19 has affected many industries and the recent data shows almost 33 million workers have filed for unemployment.

What is a furlough?

A furlough is placing an employee on leave of absence without pay. Usually it is temporary and rather than laying off an employee, companies use furlough to retain employees who they do not wish to terminate but also they can't afford to pay them for certain duration of time.

In this post I would like specifically address if an H1B employee can be furloughed citing COVID-19 or other reasons?

The short answer is NO. An employer must continue to pay the required wages to H1-B employees. When an H1b employee is hired, an LCA ( Labor certification application ) is filed.  That LCA is certified by the department of Labor and has prevailing wage as well as other information pertaining to that employee. Therefore, in the event of a company furloughs an H1-B employee, they should still continue to pay him/her the salary.

Can the employer instead opt to reduce the H1-B employee working hours?

The employer can reduce the working hours of an H1-B worker. To do so the employer needs to file an amended LCA and H1B petition with USCIS.

In certain cases where the employer is out of funds, the employer may ask the furloughed employee to use acquired paid time off, or sick leave. Before any employer does this, they should review each case with an immigration specialist to ensure that they are in compliance with the H1-B regulations.

Can the employers lay off  H1-B employee's citing COVID-19 reasons?

Unfortunately yes. Usually the employment here in USA is "at will" employment i.e. the employer can fire you at any time and you can also leave your job at any given time.

There is a 60 day grace period after you are fired from your job that you can stay in the US. During this grace period , the employee may search for a new employer. If the employee is hired, a new petition is filed with USCIS.

The information provided on the above post  is not intended to, constitute legal or immigration advice; instead, all information, content, and materials available on this site are for general informational purposes only. 

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Saturday, March 21, 2020

Temporary Suspension of Premium Processing

U.S. Citizenship and Immigration Services  announced the immediate and temporary suspension of premium processing service for all Form I-129 and I-140 petitions until further notice due to Coronavirus Disease 2019 (COVID-19).

Effective today, March 20, 2020, USCIS will not accept any new requests for premium processing. USCIS will process any petition with a previously accepted Form I-907, Request for Premium Processing Service, in accordance with the premium processing service criteria. However, we will not be able to send notices using pre-paid envelopes. We will only send batch-printed notices. Petitioners who have already filed a Form I-129, Petition for a Nonimmigrant Worker, or Form I-140, Immigrant Petition for Alien Workers, using the premium processing service and who receive no agency action on their case within the 15-calendar-day period will receive a refund, consistent with 8 CFR 103.7(e). We will notify the public with a confirmed date for resuming premium processing. 
USCIS will reject the I-907 and return the $1,440 filing fee for all petitions requesting premium processing that were mailed before March 20 but not yet accepted.
This temporary suspension includes petitions filed for the following categories:
I-129: E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-1 and TN-2.
I-140: EB-1, EB-2 and EB-3.
This includes new premium processing requests for all H-1B petitions, including H-1B cap-subject petitions for fiscal year 2021, petitions from previous fiscal years, and all H-1B petitions that are exempt from the cap. USCIS previously announced the temporary suspension of premium processing for FY 2021 cap-subject petitions and tentative dates for resumption of premium processing service. This announcement expands upon and supersedes the previous announcement. 
For current Form I-129 and I-140 processing times, visit the Check Case Processing Times page and the H-1B page on the USCIS website.

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Wednesday, March 8, 2017

H1B Fiscal Year 2018 Filing Date

I have seen a lot of confusion and a lot of readers have asked that why the H1B will be filed this year on April 3rd 2017 and not April 1 2017?

That's because April 1 and April 2 are Saturday and Sunday. The window will Open from April 3 2017 and will close on April 7 2017. All petitions received in this window ( April 3 2017 - April 2017 ) will be accepted and most probably a lottery will be conducted.

Also remember this year premium processing for all Cap Subject H1B's has been suspended. DO NOT - I repeat DO NOT file the form I-907 ( Request for premium processing) .  

     However USCIS will continue to premium process Form I-129 H-1B petitions if the petitioner properly filed an I-907 before April 3, 2017. For these cases, if USCIS does not take adjudicative action on the case within the 15-calendar-day processing period, they will issue a refund.

I hope the above information helps. If you have something to add tit , do leave a comment below. Don't forget to like our facebook page for latest updates. Also follow us on Twitter.

You would also want to look at my article : Best Money Sending Service to India- Online Money Transfers    

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