Changes in Wages, Hours, Furloughs and Layoffs
Many employers and employees, including those holding E-3 visas, are facing several challenging issues stemming from the COVID-19 pandemic and economic crisis, including employment changes such as furloughs and layoffs.
US employers are required to pay E-3 employee’s wages that have been certified by the US Department of Labor (DOL) in the Labor Condition Application (LCA). This wage is typically the prevailing wage determined for the specific position. If the reduced salary drops below the offered salary listed on the LCA, the employer may be required to file an amended LCA with the DOL.
Similar to salary reductions, as US employers are required to pay E-3 employee’s wages as certified on the LCA, a reduction in hours would likely reduce the wage paid to the employee. This would likely require an amended LCA be immediately filed with the DOL. While it is allowed for an E-3 visa holder to work part-time, this must be accurately reflected by the LCA.
Layoffs or Terminations
As an E-3 employee, if you are laid-off or terminated from your employment, generally, you are given a 60-day grace period to remain in the United States. Within 60-days of your last date of employment, you and any family members must depart the US. Please also be aware that if your I-94 status happens to expire PRIOR to the 60-day grace period, your I-94 expiration date will determine your final day allowed in the United States.
Within the 60-day grace period, you can apply for a new E-3 visa with a new employer. This can be done either by filing a new E-3 application with the USCIS while you are in the United States or through a US Consulate once the Consulates are re-opened for visa appointments. Please be aware that you cannot start new employment until the new E-3 visa has been approved by the USCIS which can often take several months.
Furloughs or “Benching”
With the current economic uncertainty, many employers are furloughing employees or “benching” the employees. Basically, this is keeping an employee on the books, but they are halting their employment and pay – creating unpaid leave. This is not allowed for E-3 visa holders. E-3 employers are required by the LCA to pay the specific prevailing wage. Only in a few conditions would unpaid leave be authorized for an E-3 visa holder – these circumstances are generally when the E-3 visa employee requests the unpaid leave, for example, for an extended vacation or maternity leave.
Many E-3 holders who have unfortunately been laid-off often ask if they can apply for unemployment benefits. In most situations, E-3 visa holders cannot qualify for these benefits.
Each state has specific regulations regarding unemployment benefits and unemployment insurance – depending on where in the US you reside may determine if you would meet the qualifications for these benefits. That said, as an E-3 visa holder whenever you apply for any type of unemployment benefit you confirm that you are no longer working. As stated above, the maximum amount of time you can be in the US without working is 60-days. Even if you qualify for unemployment benefits in your state, the maximum amount of time you could theoretically receive these benefits would be 60-days.
We are here to help!
We understand with the current health crisis and economic situation, there is an enormous amount of uncertainty for our clients and E-3 visa holder as well as E-3 employers. Our team would be happy to discuss options specific to your situation and develop the most appropriate strategy for you.