COVID-19’s Impact on H-1B Visa Holders

By Rishi P. Oza

As has been subtly evident over the past three months, the novel Coronavirus has impacted every facet of the way that we live our daily lives. Friday nights of dinner and a movie have been replaced with takeout and Netflix; children are being homeschooled, while parents find a way to balance work, caretaking, and substitute teaching, all at once. Much has been written about the impact upon American workers with unemployment applications spiking to levels previously unseen since the 1930s. Lost in the shuffle has been the impact upon non-immigrant workers in the United States, many of whom have been living in the United States for years and many of whom have been patiently waiting for green cards. While US workers may hope for a quick economic rebound and the ability to start working immediately, H-1B and other non-immigrant visa holders have been confined to a regulatory framework that works imperfectly in the best of times and is a downright disaster in the midst of a pandemic.

H-1Bs as a category are rather rigid visas, as they are employer-, location- and job-specific. When any of these factors change, the US Citizenship and Immigration Service typically requires an update to the underlying application, complete with the submission of new government filings fees and supporting documents. Some exceptions do apply – for example, individuals moving locations within the same general area can largely avoid resubmissions, as can individuals that may be assuming progressive jobs in their field (i.e. going from a Software Engineer II position to Level III position). However, regulations are exceedingly clear that H-1B workers cannot be “benched" during their period of employment, meaning that they are not permitted to remain in the country and be unpaid only to be onboarded at a later time of need; in short, if an employer wants an H-1B worker, that worker must be paid for the entirety of his/her H-1B visa validity period.

With the impact of COVID-19 resulting in mass layoffs due to employers hemorrhaging capital, these same employers are simply unable to afford to continue to pay H-1B workers for months on end. If an H-1B worker is laid off or furloughed, that worker is given a 60-day grace period in which to find a new H-1B employer, after which time, the worker is considered to be out of lawful non-immigrant status. While being out of stats can result in the institution of removal proceedings, in most cases, this is relatively uncommon; however, being out of status could have serious long-term consequences on an individual's overall immigration history in the United States and can have consequences that can last for years.

Unfortunately, the costs associated with loss of a worker's lawful status are not limited only to that individual alone – quite contrarily, significant costs are born by society at-large. Companies bear an enormous burden in losing technical and specialized skills from their workers. Critics allege that these companies can simply hire US workers without the need to hire foreign talent. While reasonable on its face, this assertion falls apart when having to take into account the huge cost associated with finding a qualified candidate and training new workers while remaining in business, not to mention the inherent loss of expertise with every departing H-1B employee.

When magnified across a single company's engineering or IT department, the loss of such brainpower can be crushing to a company's long-term prospects and competitiveness. Compounding the problem, any H-1B that is terminated or laid off prior to the expiration of his/her H-1B status must be provided with ample funds to return back to their home country. Should the company recover financially and want to rehire the laid off worker, thousands of dollars in legal and government filings fees would be necessary to obtain a new approval. When these costs are multiplied by losses faced through defaulted mortgaged, unfulfilled lease agreements, reduced tax bases and the derivative impact upon H-4 dependents (i.e. children having to leave school and spouses possibly losing their own employment positions), the downstream effect of the loss of a single worker are staggering.

Prudent regulatory policy would allow for unique flexibility in the face of an unprecedented global occurrence. Sadly, USCIS has remained silent throughout the pandemic and economic shutdown and whispers of clampdowns on the H-1B approvals have percolated with immigration hawks clamoring for reduced immigration numbers. This short-term thinking, while potentially helpful in rally votes for an upcoming election, does little to outfit the economy for the serious challenges that will need to be collectively addressed if America is going to pick herself up from this global calamity.

The hope remains that sensible immigration policy will ensure the availability of these highly skilled to continue to be drivers of the economic recovery ahead, but also be the soccer moms, ballet dads and Friday night moviegoers that our “normal" lives once knew.

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Rishi P. Oza is Partner at Brown Immigration Law, a firm that focuses solely on immigration law; he practices in Durham. roza@rbrownllc.com