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Thursday, September 17, 2020

CEO Insider

The top three immigration issues impacting workforce strategy

Statue of liberty New York, United-States

With the business toll from the pandemic continuing to mount, CEOs have shifted strategies to meet the new market. In some cases, this means a total reinvention – but in many, it means assessing the workforce and adapting to the new reality.

Foreign workers make up a sizable percentage of the U.S. employment pool. As any tech or healthcare leader will attest, high caliber professionals from outside the U.S. are crucial components of growth. Consider that in the 2020 lottery for H1-B work visas, roughly 46% of the 275,000 registrants held a U.S. master’s degree or higher.

Managing such foreign-born workers in the current climate has added yet another layer of complexity to 2020 (and perhaps beyond). There are three areas CEOs should consider as they and human resource leaders manage this segment of their workforce: changes in travel restrictions, the impact of layoffs, and election season surprises.

Bringing stranded workers home 

Starting with the good news, the Department of State (DOS) loosened restrictions on immigrant and nonimmigrant travel imposed in the earlier days of the pandemic. The move significantly expands those who can travel to the U.S.; a welcome relief for CEOs with key players who have been “stranded” overseas.

On August 12, the DOS issued updated guidance that specifies certain exceptions to the suspension. Specifically, for instance, the DOS has outlined the types of travel that may be exempted from the suspension for being within the “national interest.” That applies to certain visa applicants seeking to resume ongoing employment in the U.S. in the same position with the same employer and visa classification. It also applies to some applicants who are technical specialists, senior level managers, or other workers whose travel facilitates the economic recovery of the U.S.

There are many nuances to the clarification, but the main point is that companies can begin to get back some of their talent.  Those with skilled workers overseas should explore whether they can leverage the new guidance to bring them – and their families – physically back to work.

Fallout from furloughs and layoffs 

The government’s failed attempts to replenish a stimulus package that aids employee retention efforts translates into a warning bell for many CEOs. Those that have held off on furloughs or layoffs in hopes of an economic reboot may be thinking the time has come for drastic measures.

Here’s the trick: the inflexible regulatory scheme in place did not anticipate COVID-19, It is important to have a concrete plan in place. How layoffs and reductions in hours affect a company’s foreign workers must be taken into account before CEOs take action.

There are details and complexities depending on which types of visas are held by employees. It is a complicated technical maze, but here are two of the most common issues arising in 2020:

  1. Temporary Furloughs and Reductions in Hours Worked
    When it comes to furloughs, some visas require that an employee must be paid either the actual wage rate paid to all other individuals at the company with similar experience and qualifications, or the prevailing wage for the occupational classification in the geographic area of intended employment – whichever wage is higher.  This required wage must be paid even if the employee is not performing work and is in a nonproductive status.  The temporary furlough of such an employee would therefore lead immediately to a violation of the LCA and a potential claim by the employee against the company. Reductions in hours worked could also lead to LCA violations where the LCA was based on full-time employment.
    There is no easy way out of this problem. Foreign national employees may not be treated better than U.S. workers, so exempting them from such measures is not an option.  An employer’s only choice may be to amend employees’ visa petitions to reflect the change in working conditions (which is expensive and cumbersome) or to terminate the foreign national’s employment outright.
    This situation is much more flexible for foreign workers in some visa categories. Business and HR leaders should investigate which employees are at risk.
  2. Permanent Layoffs
    Layoffs are difficult and emotional for any employee – but foreign nationals are at great risk of being sent back to their home country without employment. Employers of H-1B employees whose position is terminated – whether through layoff or otherwise — must notify USCIS immediately by withdrawing the H-1B petition.  The employer must also offer to pay the cost of the employee’s trip home if the employee chooses to depart the U.S.
  3. Election season: more surprises?
    The visions that President Donald Trump and Joe Biden have for America over the next few years are different in a lot of ways.  But certainly, one of the biggest differences between the two is in their visions for the future of immigration in the U.S.
    For now, we know what to expect in the short term from the Trump Administration. The President is likely to continue to use the COVID-19 pandemic and the related economic downturn as justification for long-desired restrictions on lawful immigration and a continued dismantling of the asylum system.  We will also likely see a series of rulemakings that include eliminating several programs including STEM OPT for F-1 students, H-4 work authorization for H-1B spouses, and work authorization for asylees, TPS, and refugees, as well as overhauling the H-1B program with new restrictions.
    That may seem like a rash of technicalities, but if they come to pass, they will contribute to more confusion, restrictions, and penalties for businesses and employees that fall out of compliance. CEOs and their HR leaders should stay apprised of the changes and be ready to pivot in order to maintain the high level of talent needed to thrive.

Stay up to date!

2020 has been a year like no other, and adjustments to immigration policy have played a major role for companies that depend on a skilled and diverse workforce.  More change is coming, but the right strategy and compliance moves can create opportunities to recruit and retain the best foreign talent.


Have you read?
World’s Best CEOs.
World’s Best Companies.
Rich List Index (Top Billionaires).
World’s Most Powerful Passports.

Phil Curtis
Phil Curtis has practiced immigration law for more than 30 years and is a co-managing partner at Chin & Curtis LLP. He has guided Chin & Curtis for the last seven years and now serves as Co- Managing Partner. With more than 40 professionals dedicated to serving the immigration needs of the business community, Chin & Curtis is New England’s largest independent immigration law firm. Phil Curtis is an opinion columnist for the CEOWORLD magazine. Follow him on LinkedIn.