Changes in Wages, Hours, Furloughs and Layoffs for E-3 Visa Holders
Many employers and employees, including those holding E-3 visas, are facing several challenging issues stemming from the COVID-19 pandemic and resulting economic shifts, including employment changes such as furloughs and layoffs.
In this article we discuss how changes in a specific condition of employment related to remuneration and working status can effect both the employer and employee under an E-3 visa.
Salary Reductions for E-3 Visa Holders
U.S. employers are required to pay E-3 employee’s wages that have been certified by the U.S. 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.
Reduced Hours for E-3 Visa Holders
Similar to salary reductions, U.S. employers are required to pay E-3 employee’s wages as certified on the LCA, a reduction in hours would generally result in a reduction of the wages paid to the employee.
This could 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 Due to COVID-19 for E-3 Visa Holders
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.
It is important to note that you cannot start new employment until the new E-3 visa has been approved by the USCIS, which can often take several months though the option of premium processing will reduce USCIS processing time to a guaranteed fifteen days.
Furloughs or “Benching” for E-3 Visa Holders
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 authorized for E-3 visa holders. E-3 employers are required by the LCA to pay the specific prevailing wage.
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.
Unemployment Benefits for E-3 Visa Holders
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.
As an E-3 visa holder whenever you apply for any type of unemployment benefit you will confirm that you are no longer working. As noted earlier, 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.
Why Use Worldwide Migration Partners When Considering a Change in Salary, Wages or Hours for an E-3 Employee?
With the issues and disruption caused throughout the pandemic there is ongoing uncertainty for many E-3 visa holders and E-3 employers, especially in regards to changes in working conditions.
Scenarios involving changes to an employees remuneration, or place of work will routinely need amended work authorizations attained from within the U.S. and the accuracy and timing of these changes are critical factors.
When engaging in consultation with a U.S. Immigration Attorney that specializes in E-3 visas such as WMP, we can assess if an amendment is required to an employees work authorization, and present options moving forward to ensure the employee remains in legal status during the transition, and while extending their stay in the U.S.
Contact us to discuss specific to your situation and develop the most appropriate strategy for your circumstances.
About The Author
Melissa Vincenty is a U.S. Attorney, a registered Australian Migration Agent and the founder and managing director of Worldwide Migration Partners. Melissa has over 25 years of experience in U.S. Immigration Law, including practising at the world’s largest U.S. Immigration Firm and more than 15 years as a Country Specialist (China and Tibet) for Amnesty International USA.
Disclaimer: The information in this article is general in nature, may not, and is not intended to constitute the most up-to-date legal or other information, and is for general informational purposes only. It does not represent legal advice specific to any individual/s situation, and should not be relied on as such. Please contact us to schedule a consultation for legal advice specific to individual circumstances.