H-1Bs can go on unpaid leave, it’s a better option, say immigration experts – Times of India

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MUMBAI: Immigration attorneys are inundated with queries from their clients, owing to the various intricate issues related to their H-1B employees.
Can we furlough (bench) our H-1B employees? Or terminate their services? Can a salary cut be offered to them? Or can they go on unpaid leave? These are some of the many issues that employers who have hired migrant workers are grappling with.
The first question to be asked is: Can we furlough our H-1B employees – put them on the bench? The unanimous reply from immigration experts is a – No! Even if such employees are benched, they have to be paid the stipulated wages (offered to them on the labour condition application) for their unproductive time. This, understandably becomes a costly affair for companies which are reeling under the bleak economic scenario brought on by the Covid-19 pandemic.
So, is terminating employment the best answer? Technically, the services of an H-1B employee can be terminated. Rajiv S. Khanna, Arlington based immigration attorney at Immigration.com said, “The company needs to fire the employee and revoke their H-1B after offering them a one-way ticket back to their home country.”
Added David Nachman, New Jersey based, managing attorney at NPZ Law Group: “Typically companies may require a severance agreement if a termination or layoff may be required. In addition to revoking the H-1B, an additional step that may be undertaken and is really a ‘best practice’ is for the employer to also withdraw the labour condition application. The return ticket offered by the employer is only for the employee and need not cover his or her family members. In addition, the payment for the return airfare can be made contingent upon presentation of evidence demonstrating that the former H-1B has actually left the country – such as an air travel receipt.”
The world, as we knew it, has shut down. International travel has come to a halt. Further, employers are likely to need the services of the H-1B employees, once things being to improve.
Is a salary cut the next best option? “The Department of Labour (DOL), may be fine with a salary cut across the board that also includes H-1B employees, as long as their minimum (prevailing) wage is maintained. To illustrate, employees in a particular job position are paid $80,000, as against the prevailing wage requirement of $ 70,000. A wage cut across the board, provided the prevailing wage rate is maintained could be acceptable by the DOL. But this can be tricky and would also involve compliance with local laws, attorneys must be involved in such an exercise,” cautions Khanna.
It is also possible to put an H-1B employee on part time work with a corresponding pay reduction. “In order to reduce the hours of work of an H1B employee, an amendment must be filed with US Citizenship and Immigration Services (USCIS). As soon as the amendment is filed with and received by the USCIS, the number of hours an H-1B employee works may be reduced,” says Khanna.
“Another solution is, if the H-1B employee seeks personal time off. In such a situation, they are allowed to remain in H-1B status. This is not considered as a furlough and the employer does not need to pay the salary for this leave period,” points out Nachman. A word of caution here – it must be so structured that it is not treated as a benching in disguise.
On a conservative estimate, there are approximately 3 lakh Indians in US, on H-1B visas.
For those H-1B workers who have been laid off, there is a grace period of 60 days, before they will be treated as out of status. Since, flights are not available for going back home, and it is difficult to find another job- the best bet is to transition to another visa.
Khanna advocates B1 or B2 (tourist or business visa) as the best option. A status change application can be filed online, he explains.

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