2020 AILA Conference: Day 2, Session 2: COVID Disrupts OPT Students & H-1B Workers

[Tsang Intro Splash]

Hi everyone, this is Joseph Tsang from Tsang & Associates, and today we’re back at day two of the AILA Conference 2020. This is the first time AILA is doing this virtual conference, and I’m super excited to bring that to you.

Now, as a quick disclaimer, I’m only reviewing the ones I’m attending, and the opinions shared in the video are mine only, even though I am an AILA member. The opinions I share are not attributed to AILA or even to the speakers. I am summarizing what the speakers are saying and sharing my two cents on the topic.

If you don’t know what AILA is, it is the American Immigration Lawyer Association, the largest immigration lawyers association in the United States. Hundreds of thousands of attorneys gather together around the world to discuss these topics every year at this conference, and I’m super excited to get started.

[0:46] Welcome to Day 2, Session 3: How did COVID impact the employment cycle? Now, this video is extra heated because the attorneys were actually going at each other, trying to one-up each other with their suggestions. It’s actually quite fun watching it this way. I mean, lawyers love to argue, and this was a perfect example of that.

All the other videos that we’ve reviewed were very nice. All the attorneys were giving advice like, “This is how they do it. Oh, nice. This is how I do it.” But this one, in particular, there are actually a lot of different ways, and that’s because the situation is different given every single case. But let’s dive into it.

[1:17] Alright, disruption number one: OPT students. So, if you don’t know, if you’re an international student, after you graduate, you can work at a U.S. company for one year and stay on OPT status. Now, the Trump administration has tried to change that. They’re trying to kick everybody out. But typically, they still can if a company is willing to hire a young graduate for one year. They can do that, and then they can apply for the H-1B and the complicated visa process.

Now, given the situation of COVID, this situation has changed dramatically. Many employers have canceled internships, OPT programs altogether. OPT, CPT, they canceled everything. For the companies that didn’t cancel it, the OPT students are not really working at the worksite. Now they’re all working from home. Now, how does this affect them and affect the employer?

So, some of the key differences are that these OPT students are no longer working on-site when they were supposed to. Or before, they were working 20 hours or more, and now they’re working 20 hours unless… Now, what do you do in this situation? So, the law provides that it’s okay given this pandemic that they don’t have to work on-site. Plus, number one!

They don’t even have to work in the U.S. A lot of these OPT students are actually working abroad in Japan, Taiwan. They will go, they travel outside of the country. Now, you ask, “What’s the point of maintaining OPT status if they’re traveling outside?” The key is that it allows them to get back in. Right, so let’s fast forward six months, nine months from now. They are still on their one-year OPT status, but they’re outside of the country. Now, the pandemic has gone away. Everybody’s getting back to work. There’s a vaccine. Everybody’s super happy. When they fly back into the U.S., if they’re able to prove that they are on OPT status, even though they’re outside the country for nine months, they can get back in. And why is it important to get back in? So then they can file a change of status. Do they get their H1B? They get the E2? They get something else? Super important, pin it for a future idea.

[3:11] The second major issue is the number of hours you’re working and the amount of pay. So typically, you’re supposed to work at least 20 hours, and preferably it’s paid. Some employers don’t pay for OPT students, and some employers only require the minimum 20 hours. But technically, you really want them to work almost full time, give them that on-the-job experience, just like a professional internship program.

So now, given the situation of the pandemic, they’re furloughed, they’re not working 20 hours. Is that okay? So it is okay, and this is where it gets really heated. Some of the attorneys were arguing, “Well, let’s see how low you can go. Is 18 hours okay? Is 15 hours okay?” One attorney was arguing even zero hours is okay, given that it’s a furlough. Now, the reason why it’s okay is that as long as the employee is still on payroll, that’s still technically counted. They’re just not working the number of hours.

So I think the best advice, seeing everything, my personal take, is that obviously try to stay in compliance. If you can work 20 hours remotely, then do that, maintain it just to make the documents clear and simple. There’s no exceptions you’re even applying for. If you’re only at 18 hours, 19 hours, that’s not a big deal. But if you’re dropping really low, then you really want to document the situation as temporary. But in the long term, it is still okay. And if it happens that you have to furlough all the OPT students but you still want to maintain their status and maybe they even left the country and not working at all, and it’s zero hours, keep them on the payroll. So maybe nine months from now when they come back, they can add that argument in.

[4:48] So just to be clear, the AILA attorneys and the speakers were not recommending all the employers to terminate the OPT students and reduce their hours down to zero. They were merely suggesting that if they reduced them to zero, there’s still a hopeful argument to be made. That was sort of the one-up situation. Like, “I could do it now. I can do it better.” “Well, I can do it even if they have zero hours.” It was pretty funny to watch. Alright, let’s move on.

[5:15] The second disruption is with the H1B. Now, with the furlough, a lot of employees have been working fewer hours or reduced pay, and they’re not working on site. How does this affect the actual H1B candidates? A lot of people are on H1B for many years and they’re currently working as H1B, and they’ve been furloughed. What is the correct policy? So first, if your hours have been reduced, is this still okay? Do you need to amend your H1B application because there’s a material change?

One side says it’s still okay because your payroll hasn’t changed. It’s just that you’re taking time off. And if you’ve been furloughed, you have to argue that it’s a company-wide policy, it’s a sabbatical, it’s given the pandemic, and you are still considered an employee and on the payroll. And you just have to make sure that it’s not one of those furloughs where you all been let go and that you’re all being rehired on. I know a lot of HRs are doing that because there’s financial benefits to do that, lay everybody out, restart all the 401(k)s, restart all the benefits, and it’s a clean break. There’s unemployment benefits, there’s all sorts of different things that are related to that. But as an H1B worker, you cannot do that, and you need to work with the HR department and the immigration attorney that’s advising on that because furlough can take a lot of different definitions. Exactly how is your HR executing the furlough could be a world of difference to the H1B application.

[6:34] And also, a super important thing to know is that you need to argue that you are not being treated better than a US worker. I know typically in H1B applications, you don’t need to submit this type of documentation, although it is still a good idea given the whole Buy American, Hire American thing. You always want to prove that you are making America great, you are helping the US, and the company had to hire you. They couldn’t just hire a US worker for whatever reason. It’s always good to argue that. But in this specific situation, if your case is challenged, if you have a request for evidence, if your case is about to be denied, if you’re filing an amendment or if you’re filing a new application, you also want to include the furlough policy by the company. What is it? What’s going on? Maybe you can’t get a document from HR, you could get one from your particular supervisor. “Hey, this is what the company is doing, this is what we’re doing, here’s how it applies to everybody at the office and this particular H1B worker that might be getting a lower salary than their peers that are American, they are not getting treated better and given more hours than the US worker, and this is why.” You see the point? The USCIS cares about US workers. If they see all the HR people are not getting furloughed or they are getting furloughed less because it’s a cheaper pay, then the application may get denied because of the Hire American, Buy American policy.

[7:53] And the third impact is to the I-9 policies. Now, this really only applies to the employers, to the HR department. Applicants, you guys don’t really care, well, you guys might care, but the main point is that if the company is doing a furlough and if they are terminating everybody, then they have to rehire everyone. And if they’re rehiring everyone, then they all have to do the whole I-9 thing all over again. And if they don’t, then the company will be fined, and also, you might be in trouble. So if you’re just doing a temporary leave, if it’s just a true furlough that they’re not working temporarily, if they’re on a sabbatical, if it’s a fortification, it’s extended leave, things like that, you don’t have to redo an I-9. So watch out, HR.

[8:35] So COVID has drastically impacted the employment cycle of major companies. Typically, outstanding students from universities graduate and they have one year of OPT to work at a company and test it out. Now, a lot of them can’t, and a lot of them have to work abroad. So here were some examples of how they can still maintain their OPT status and continue a relationship with the company so the company can really test out if this person is a good worker.

OPT students are typically the best employees in a company because this is their one shot, their one opportunity. They really need to prove their worth to the company so the company is willing to sponsor them and file for the H1B or file for the green card, for that matter. And if they don’t succeed and the company doesn’t think they’re good enough, they’re not hardworking enough, they’re not producing results, then they have to start with another company. But why would another company take their chance on you when you can’t even get an OPT because OPT only allows for one year? So they choose one company. They really have to go full force and really prove their worth. You can imagine how difficult it is for these international students. Right? Their palms are sweaty, knees weak, arms are heavy, there’s vomit on their sweater already, mom’s spaghetti. It’s crazy difficult, and they’re doing their best. And now companies are struggling to retain these OPT students. But luckily, there are all these ways.

[9:48] Now, after the OPT is secured, how do you deal with the H1B applicants? Right? So this is the next leg of the journey for most international foreigners. Now they have the H1B, but they’ve been furloughed. How do you maintain their status? They’re fighting for their lives because they need to prove their worth on their H1B in order for most companies to sponsor their green card. And if they don’t sponsor their green card and if they lose their H1B status, then they have to go back. They already fought so many battles, they already have a promotion coming up, they have invested in a house maybe, and now they have to sell everything and go back. It’s extremely difficult. But here are some solutions.

And now even after the green card has been filed, it’s going to take years longer because of all the furlough, because of the processing delay. Now the applicants have to stay on H1B for a lot longer. Before, you just have to file for the green card, and within one year, the employee can get a green card and they can work peacefully and at rest. And now they might have to be on the hood and they have to be on the H1B for a lot longer before they can get the green card. Not to mention what we learned the other day that USCIS is taking printing green cards in-house, and before it was a month-long process. In the future, it could be a year-long process just to print this darn card, and assuming they mail it to the right address.

[10:58] So what does this mean for the employer and employees? Well, if you don’t get your green card, if you don’t get your work permit, if you don’t get your H1B application amended in the right way due to the furlough, all of these changes will affect your ability to continue working, and it’s a huge uncertainty in the US. 

So what’s the solution? Argumentation, documentation, communication. Make sure your HR department, yourself, your manager, your attorney, they’re all on the same page. If you’re on one of those companies that only one person is designated to talk to everybody else and nobody else can be in the same chat room and nobody else can be talking together, then you have to double the effort to make sure the communication is crystal clear and document everything. And maybe you have to go above and beyond and talk on behalf of the attorney to the HR, talk on behalf of the HR to the attorney, and prepare documentation for everybody else because the system is extremely complicated, and if things are not done right and documented well and filed correctly, everything could be in jeopardy.

And that’s assuming an officer cares and is competent to review your application. You always have to prepare for the worst as well, assuming the officer doesn’t understand furloughs, doesn’t understand what your company is going through. And so you will have to do the double effort and explain that to the officer. They’re trained in immigration law, but they don’t know international corporate governance. They don’t know how taxation works if a company is hiring an OPT student overseas. You have to do the homework. You have to figure it out. Hopefully, you have a good team with you.

[12:28] Alright, that’s a wrap for Day 2, Session 3.

Typically, at the end of each ELA session, all the attorneys will stay together. They will ask each other questions. They’ll talk to the speakers. They’ll exchange notes. But since this year’s ELA conference is held virtually, we’re not actually meeting and discussing. So if you have any questions about any particular topics that we covered in this video, please leave a comment below. Let us know, email us, call us. We’ll be happy to discuss some of these nuances with you. It’s an extremely exciting time, and thank you for joining.

Take care. Bye.