NelsonA: Furlough Questions

#1
Hi NelsonA,

Hope you're well. I'm on a renewed 3-year TN that I obtained last month and was paid bi-monthly for just two pay periods by my employer since that TN was granted. They made prior payments during my prior TN, which was bridged without gap with the renewed TN. Today, my employer missed a payment and suddenly revealed that my employment was furloughed, while my company is waiting for their PPP government payment. It's not clear when my work will resume (if at all) - could be a few weeks, a month, maybe longer. My company hasn't terminated me, and I'm pretty sure that I'm still an employee in status (it's a TN - no prevailing wage requirements), but as of now, I'm not receiving payroll.

Is it advisable to apply for California UI immediately? I've read:
  1. one must go back to Canada and apply from there via Service Canada (though it's not really safe to go back to Canada in lockdown etc, and my belongings are located in the US, and there are border closures of unknown length. I can get into Canada as a Canadian Citizen.)
  2. I'm eligible for state UI, but not while physically in US (any way around that, especially while I'm employed, but furloughed?)
  3. file your UI claim in the first week that you lose your job or have your hours reduced. Your claim begins on the Sunday of the week you submitted your application.
I'm also trying to have another potential employer fund me via:
  • subcontracting through my employer and paying them to fund me
  • concurrent TN - I-129 mail-in (the preferable option now while I'm in the US and borders are closed, but offices are closed, and RFE rates are high)
  • concurrent TN - Airport POE visit or Southern Border (once "non essential" work is permitted)
Your help is appreciated.
 

nelsona

Registered Users (C)
#2
Please don't ask directed questions. This is not my forum.
The current rules are that those who are no longer working TN cannot collect UI while in US. There are sometimes deals made by firms that reduce hours in which it MAY be possible for TN workers to collect UI while working. That would need to be checked by state. If you are not working you are not in TN status and are still expected to maintain a legal status or leave US. Canada will let you in.

All your options require a new TN,
 
#3
Please don't ask directed questions. This is not my forum.
The current rules are that those who are no longer working TN cannot collect UI while in US. There are sometimes deals made by firms that reduce hours in which it MAY be possible for TN workers to collect UI while working. That would need to be checked by state. If you are not working you are not in TN status and are still expected to maintain a legal status or leave US. Canada will let you in.

All your options require a new TN,
Ok. I value your feedback, NelsonA. My employer indicated that I'm still employed (checked) - just not being paid for the moment until they have funding. They have not dismissed me from the company and still provide all benefits. I have an involuntary temporary layoff scenario as below. I'd like to imagine that I can stay where I am and claim UI.

From somewhere else:

[In some situations, an argument may be made that an individual maintains his or her TN visa status during a "temporary" lay-off. The TN regulations regarding strikes and labor disputes indicate that not all periods of unemployment result in a failure to maintenance of status:

If the alien has already commenced employment in the United States [under TN status] and is participating in a strike or other labor dispute involving a work stoppage of workers…the alien shall not be deemed to be failing to maintain his or her status solely on account of past, present, or future participation in a strike or other labor dispute involving a work stoppage of workers…8 CFR § 214.6 (k) (3).

If a TN visa worker can maintain status by voluntarily participating in a strike, then surely an argument can be made that status is maintained during an involuntary temporary lay-off. Immigration regulations governing the I-9 employment verification requirements may support this proposition that a temporary lay off does not result in a failure to maintain TN status.]
 
#4
NelsonA, depending on my source of information, I get different responses about the Furlough scenario while on a TN. My scenario is that I'm employed with benefits, but no pay for a short period (hopefully) with an expectation of pay in the near future.

Laying Off Workers in Other Non-immigrant Visa Categories
The cases of other non-immigrant visa categories mentioned above (L, E, O-1, TN) differ in that the employer must also notify the USCIS of the termination of foreign workers’ employment, but there is no requirement of a notification to USCIS in the case of a furlough.

Effectively, this means a furlough is permissible, because the employee can go without wages with the presumption that the employer intends to re-hire them as soon as they are able. This allows the employee to maintain their lawful status.

What happens if I am Furloughed while on a TN?

If you are furloughed, and there is a reasonable expectation of return to the same employer, there is an argument that you are in valid status until you return to work. The exact conclusion would depend on the terms of the furlough, and whether there was a reasonable expectation of return. If your employment resumes, you would not have to file another TN petition and could continue working.

Can a company reduce my pay while I am on a TN Visa? What if my Company moves me to Part-Time?

Yes. When there has been a significant change in the terms of employment, there may be a need to file an amended petition but a reduction in salary may be fine depending on the amount. If a company moves an employee to part-time from full-time, this would normally necessitate a significant change of employment that may require a modified petition, but this is fact specific.
 
#6
Well, I did yesterday. Some of the key things for folks on furlough (through what I did read):

1.Are you unemployed as a direct result of a recent disaster (for example: earthquake, flood, mudslide, or fire) in California? Yes
1a. Select the type of disaster: Public Health
1e. Select the option that best applies to you: Unemployed Worker
(this covers COVID-19)

3. Reason No Longer Working.
Separation Category: Laid Off/No Work
Separation Explanation: Temporary layoff
(this covers furlough)

6. Are you ready and willing to accept work that matches your work skills and educational background? Yes
(this would be work from my current employer that is still paying my benefits and giving me remote access.. and says I'm employed)

I don't have high hopes on receiving UI (given bureaucratic/political elements/rapidly changing rules) and look forward to resuming work soon.
 

nelsona

Registered Users (C)
#7
Your answer to 6 has ALWAYS been interpreted by state UI as "NO", for TN workers, since you are NOT "ready to work."

Btw, when you quote some website, at least say where you got it. "somewhere else " doesn't cut it.

There is a difference between not having to re-file TN, and not being in status. Your are effectively "benched" which for ALL work statuses in no longer fulfilling status. As the quote mentions, this is that firm's "argument", not the law.
 
#8
Thanks, NelsonA. I get your points, where you assert that I'm out of status and won't get UI. Let's see.

It's pretty easy to copy paste the quoted statements into Google and get the sources - took me 20 seconds. When I include the links to the websites, they block my reply in this forum, so those links were excluded.

It's been advised to reply that I'm "ready to work" (for my employer - they're still employing me with paid benefits, but not for other employers). My state has also removed the requirement to search for work. It's also been mentioned that there's no specific language regarding the handling of furloughs. I get that you interpret it as benching and how it's not permitted. A pay cut would have likely been better. Company claimed to have no cash directly as a result of the global crisis.

Yeah, arguments aren't law and they can be applied to generate some outcome.
 
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nelsona

Registered Users (C)
#9
Since you aren't going back to Canada, the issue is moot. it's more applicable for those who have a choice to either stay in US and forego UI, or go back to Canada and get UI.
In this case, since you are not having to search for work, that clause my not be applicable.
 
#10
Ok, Thanks for the speedy reply, NelsonA. I tried to be as honest as possible, and the state and federal rules are in some flux now.

(Source: California EDD)
Due to the impact of COVID-19, we made the following temporary exceptions for all Unemployment Insurance claims until further notice:
  • Waiting Period – The 7-day waiting period is waived for claims beginning on or after January 19, 2020. After you submit your first two-week continued certification, you will be paid for the first week of your claim.
  • Work Search – You are not required to look for work each week to be eligible for benefits.
The sooner that my employer resumes paying me again, the better. I've let them know.
 
#11
In case it's useful for others:

(Source: Hunton Andrews Kurth)

What other visa categories may be affected by a furlough?

If an employer furloughs a worker in a visa category that does not have a prevailing wage requirement, additional action may still be needed. For example, employers must notify the universities of F-1 workers who have STEM OPT work authorization if their training plans change significantly. O-1, TN, and L-1 workers may be furloughed without pay, but if their authorized stay expires before the 60-day grace period ends, they may be unable to remain in the United States. In addition, nonimmigrant workers may use a grace period only once during each period of authorized stay regardless of how many days the grace period lasts. So, for example, these workers could not be furloughed one week per month during the same period of authorized stay. Instead, the employer would have to file a new petition, seeking a new period of authorized stay in order to furlough the worker for a second time.
 
#12
Another interpretation:

(Source: Ogletree Deakins)

Furloughs

Generally, for E-1, E-2, L-1, O-1, and TN employees to remain in valid status they must be employed and working for the employer that sponsored them. USCIS has not issued any guidance about how a furlough would impact these visa statuses. However, these employees would not be working or receiving wages, so one might speculate that they would not be in valid status.

Some employers are leveraging a 60-day grace period that allows employees to maintain status despite a “cessation” of employment. Under this argument, if the employees return to work within the 60-day grace period, they will have maintained status and no new petitions or departure and reentry into the United States to reset their stay would likely be required. Keep in mind neither the 60-day rule nor the proposed rulemaking notice explicitly mention furloughs, so there could be some risk in this interpretation. If employers choose this approach, it is important to note that the 60-day grace period can be used only once.
 

nelsona

Registered Users (C)
#13
So, as you see, regardless of the eligibility of UI, you are using your 1-time grace period right now, and will have to leave, go back to work, or find another TN job within that period. If you switch to B2 by mail (I-539), then you definitely are no longer UI-eligible.
 
#14
Yes, NelsonA, so it's quite easily possible that I might not receive UI, not be given an option to go back to work, and near the end of the grace period, I'd need to switch to B2 to try to clear affairs. After that, if my company is willing to re-hire me, I'd present a new TN app at a POE most likely.

The challenge that I have with having another TN job adjudicated within the next two months (and that's after the time needed to get an offer letter): I-129 will be super slow (offices closed, premium processing suspended, RFE games when they re-open), POE (risk of catching COVID-19 despite precautions, lockdown interfering with travel, non-essential travel criteria for re-entering US, 14-day quarantine policy/plans on re-entry to Canada -- maybe it'll be removed in a few months). Feel trapped.

I-539 can be filed and submitted online. Seems like a drag to pay $455 and wouldn't be allowed to search for work until I leave the US.

Alternatively, I could stay beyond the grace period without switching to B2, and face the music later (which could include denial of entry/bans etc.). Unfortunate that it has to come down to this. Maybe USCIS will introduce some more rules to accommodate this circumstance, but I doubt it. My company originally said possible "pay cut" without confirming, and then went full-tilt furlough last minute without consulting me.
 
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nelsona

Registered Users (C)
#15
You are allowed to search for work while in US on B2. It is not sure that returning to old job requires new TN, it does require new entry however.

All TNers face the uncertainty of their job/status, at all times. Such is the life of a TNer.
 
#16
Indeed. I was wrong about the B2.

NelsonA... if instead my company says that I requested an unpaid leave instead of a furlough introduced by them, would that prevent the 60 day grace period from occurring? I've read that this strategy could work for H-1B's, but the reasons need to be legitimate.

Source (Nolo Law)
====================================================================

The exception to the wage requirement is when it's the employee's decision not to work. In that situation, you may not need to pay the H-1B worker's wages. The DOL regulations provide several specific examples of when this applies, for example:
  • touring the U.S. caring for an ill relative
  • taking maternity leave, or
  • recovering from an automobile crash that "temporarily incapacitates" the employee.
Other, comparable situations also may qualify.

For Unpaid Leave: Help Ensure That Your Employee’s Status Won’t Be Questioned
You may want to make sure your employee receives any needed documents from you to help show that the employee is on an authorized, unpaid leave. These documents may include a letter from you confirming employment status and length of approved leave and relevant sections of your employee benefit plan.
====================================================================
 
#17
If I'm paid within the two month grace period, I plan to just continue work as if nothing happened. Safer to stay in place - don't think I'd do another customary entry into the US after returning to work (where I'm still employed).
 
#18
So one could request an unpaid leave for quarantine and get around their grace period situation in a legit way.

(Source: Duane Morris LLP)
=============================================
Short, unpaid leaves due to required quarantine for H-1B, L-1, O-1 and TN workers would not raise any immigration implications, as long as the leaves are approved and taken according to company policies in place at the time. H-1B workers are required to be given the same benefits and working conditions as U.S. employees.
=============================================
 
#19
In theory, I could say that I myself requested unpaid (productive) leave of absence due to a public health emergency and lockdown, and allocate my quarantine time to be separate from the furlough (unproductive) period to buy some more time for company to get funding without switching to B2 ($455) and then dealing with antics to re-establish TN again (which may be quite dangerous and risky over the next few months), especially given latest rhetoric from #45 and essential travel requirements. If there are consequences that do actually happen later (I get the rules), I stopped caring. USCIS/CBP have much bigger fish.
 
#20
wouldn't be allowed to search for work until I leave the US.
Why not?

Alternatively, I could stay beyond the grace period without switching to B2, and face the music later (which could include denial of entry/bans etc.).
This seems like a risky idea. You could get away with it if border officers never discover the true date your employment ends, in fact it's unlikely unless you somehow arouse suspicion, but 'what if'?
 
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