Visa Holders Are Caught in the Middle Amid Mass Restaurant Lay-offs

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​Among the millions of hospitality professionals being laid-off amid the COVID-19 pandemic are immigrant visa and green card holders. Those with work-sponsored visas, in particular, are now navigating the complex intersection of immigration and employment law—all during a global pandemic. Questions of status, government benefits, and next steps are all confusing. The law is grey. “The situation is changing by the hour,” says New York-based Immigration Attorney Tsui Yee.

Adding to immigrants’ fears is the expanded public charge rule that went into effect this February. Can unemployed immigrant workers claim benefits? Will accepting government benefits hamper their chances of getting a green card one day? 

Plate spoke with Yee to better understand some of the concerns of visa holders who recently have been laid off from their hospitality jobs. This article should not be construed as legal advice; it’s meant to be a starting point for restaurant owners and hospitality workers who are navigating immigration and employment law during the COVID-19 crisis

I have an employer-sponsored visa, and I’ve been laid off. What’s my status?

If your employer sponsors your work visa, regardless of visa type, the moment you’ve been laid off, you’re out of status. Technically, your employer is supposed to notify immigration that you’ve been laid off, but many never do. It’s not mandatory, but it’s advisable.

OK. So I’m out of status? What if I get rehired in a month or two?

Typically, if a visa holder gets laid off, there’s an unstated grace period of 30 to 60 days to find a new job and visa sponsor. Once both of those are secured, the worker must file again with immigration. The longer the time between jobs, the less likely immigration is to approve a new work visa, says Yee.

In the last week, many restaurants have laid-off workers, even if they anticipate opening back up in a month or so. Owners might anticipate hiring back much of the same workforce, including visa holders.

Here’s where it gets complicated, especially for H-1B visas holders.

There is an anti-benching provision—designed to safeguard workers—built into regulations for employers who sponsor H-1B visas holders. Benching happens when an employer stops paying an H-1B visa holder for a period of time, often during a slowdown in business. Under immigration law, employers are only permitted to stop paying H-1B visas holders if the worker is officially terminated.

What does that mean for H-1B visa holders during the COVID-19 crisis? If you’ve recently been laid off from a restaurant job but hope to return to it after the crisis has abated, it could trigger a benching violation for your employer. It’s a grey area of the law, and Yee says that even if immigration doesn’t find out you were laid off (and therefore benched), it may come to light in the future if you want to apply for a green card.

Yee says there’s more flexibility for other visas, such as O-1 visas, for which there are no anti-benching provisions. Unless an O-1 holder’s employer notifies immigration, the interruption of status may never come to the attention of the government. The restaurant also uses J-1, H-3, H-2B, E-2, TN and L-1 visas to fill positions.

Am I eligible for unemployment benefits?

Only permanent residents, aka green card holders, are eligible for unemployment benefits. Whether green card holders are approved for the benefit further depends on how long they’ve been working in the United States, how much money they make, and other factors. You can find your state’s unemployment resources here.

Why not visa holders? For someone to qualify for unemployment benefits, they have to show that they have authorization to work—during the time in which they were working and during the time in which they are applying for unemployment insurance. Because employer-sponsored visa holders lose status the minute they’re laid off, they don’t have permission to work and, therefore, collect benefits.

What is the public charge rule?

The public charge rule has been part of immigration law since 1882, and it’s used as a way to deny visas and green cards to people who are “primarily dependent on the government for subsistence.” A whole host of factors is considered when determining if someone is a public charge: age, employability, education and skills, family assistance, and assets.

What updates were made to the public charge rule in 2019?

Since 1999, immigration has looked at whether a person uses government benefits to help determine whether they’re a public charge. Disqualifying benefits included Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), state general assistance programs, and  long-term institutionalization paid for by the government.

In 2019, the rule expanded the benefits that immigration officials can consider, and went further to define a public charge as someone who receives public benefits for more than 12 months within any 36-month period. If someone receives two benefits in a month, it counts as two months worth of benefits.

As of February 24, 2020, these benefits are also disqualifying under the public charge rule:

• Supplemental Nutrition Program (SNAP), or food stamps
• Section 8 housing assistance
• Public housing
• Non-emergency federally funded Medicaid (with exceptions for children under 21, people with disabilities, pregnant women, and mothers within 60 days after giving birth)
• State and local cash assistance

I’m a green card holder. If I need to access government benefits, will recent changes to the public charge rule hinder my ability to become a U.S. citizen?

No. Once you’ve become a green card holder, it’s generally established that you are an able worker or are part of a family that can provide for you. Public charge considerations are not part of the naturalization application or final steps to citizenship.

Is anyone else excluded from public charge consideration?

Yes. These categories of immigrants aren’t subject to public charge consideration: refugees, asylees, Afghans and Iraqis with special immigrant visas, certain nonimmigrant trafficking and crime victims, individuals applying under the Violence Against Women Act; special immigrant juveniles; and those to whom DHS has granted a waiver of public charge inadmissibility.

I’m a visa holder who has been laid off. If I apply for government benefits, should I be worried about the public charge rule?

It’s complicated. We’re in an unprecedented time as a country. Deportations are still happening, and the new public charge rules were explicitly designed to limit immigration to the United States. However, U.S. Citizenship and Immigration Services (USCIS) does appear to have softened its stance, at least during the time of the COVID-19 pandemic and recovery.

In mid-March, to encourage immigrants to seek medical care during the COVID-19 pandemic, USCIS released a statement saying that it “will neither consider testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19 as part of a public charge inadmissibility determination.”

USCIS also said that if immigrants must use public benefits during the pandemic—because they got sick, were laid off, or had to stay home with a child whose school closed—that the agency “will take all such evidence into consideration in the totality of the alien’s circumstances.” More simply, when visa holders and immigrants apply for visa renewal or green cards, they can submit a statement and documentation about the ways in which they were affected by COVID-19 and why they needed public benefits. USCIS will take into account the extraordinary needs of immigrants during the pandemic. You can see the full USCIS statement here.

Visa holders should work directly with a lawyer or legal aid if they have concerns about the public charge rule and their future status.

As a visa holder, is there anything else I should be thinking about right now?

Just like other businesses, embassies are shutting down in-person services to keep their staff safe, and many have stopped processing visas except for emergency visas, according to Yee. Out of status workers are technically required to go back home, but airlines are canceling flights and many borders are closed. With critical services and travel suspended, Yee says that, with some success, immgration lawyers have petitioned immigration officials in some ports to be lenient on “satisfactory departure dates” for their clients.

Caroline Hatchett is a New York City-based food and drinks writer, who also happens to host the world’s only casserole lifestyle podcast.