U.S. Citizenship and Immigration Services and the Department of Labor have not issued any special exceptions or guidance for temporary layoffs related to COVID-19 business shutdowns. Employers contemplating temporary layoffs should consider the immigration consequences both to the employer and employees. Generally, employment must continue for an employee to maintain immigration status with a maximum 60-day grace period to find new employment or leave the U.S. after the last day worked.
Students on Optional Practical Training (OPT) status are permitted a maximum of 150 days of unemployment – up to 90 days total during the initial 12-month OPT period and an additional 60 days for students granted a 24-month STEM OPT extension.
Aside from exceptions for medical or voluntary leaves initiated by the employee, employers with H-1B employees are required to continue to pay H-1B employees until the petition is withdrawn.
If you are considering a temporary layoff of employees currently in the U.S. on an employment-based visa status, please contact your Varnum immigration attorney to review the consequences and any necessary steps that should be taken to protect both the employer and the employee.