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.