The September that reminded everyone how fast the ground can shift
In September 2025, a lot of HR teams learned how fast the ground can move. On September 19, the White House signed Proclamation 10973, adding a $100,000 payment to new H-1B petitions for workers outside the United States. It took effect at 12:01 a.m. on September 21.
Then came the confusion. People weren't sure who the fee applied to or who could still re-enter, and some workers abroad canceled trips or rushed back before the deadline. Federal agencies later clarified that the payment hit certain new petitions, not valid visa holders re-entering, but the scramble was already real.
Picture a key engineer visiting family overseas, suddenly unsure they can be back at their U.S. desk on Monday. That's the human version of the story, and it played out in group chats and HR inboxes all month. The work didn't stop being needed; the person just couldn't get to it.
This wasn't a one-off. Travel bans, consulate backlogs, visa revocations, and layoffs all produce the same outcome, and it touches a large population, roughly 400,000 H-1B petitions were approved in fiscal 2024 alone.
The policy itself keeps shifting, too. A federal court vacated the fee in June 2026 as an unlawful tax, then stayed its own ruling, so the fee stayed in effect pending appeal. Expect more turns before this is settled.
Here's the thesis: status and work location can change overnight, and your company still needs a compliant way to employ that person. We've watched teams navigate exactly this, and the ones who stay calm are the ones who know their options ahead of time.
Why one canceled flight becomes a company problem
The moment your employee can't work from where you employ them, their immigration situation becomes your business-continuity problem. The instinct is to file this under "their visa issue." It isn't. It's yours the second the work stops.
Two things break at once. The person loses the right to work in that location, and you lose the legal basis to pay and employ them there. Both have to be solved, and they don't solve themselves. Fixing one without the other still leaves you exposed, a legal right to work means little if there's no compliant way to run payroll behind it.
The stakes are concrete. A project stalls with no clear restart date. You have a payroll you can't legally run in the new location. Improvising invites misclassification or permanent establishment risk. And the person, stuck in limbo without pay, may simply take another job.
Watch the quiet trap: paying a U.S.-based salary to someone now sitting in another country, with no entity there, can create tax exposure. The exposure isn't hypothetical, and it grows the longer the arrangement runs informally.
Cross-border remote work doesn't automatically trigger a permanent establishment, but it can, and that risk has to be managed rather than ignored. The OECD's November 2025 guidance sets a safe harbor when the person works there less than half the time. Cross that 50% line and a separate commercial-reason test comes into play, and you can face corporate income tax, profit attribution, and host-country withholding. That's a lot to inherit from one canceled flight.
The clock you're actually racing (grace periods, status, and re-entry)
The immigration rules give your employee a short runway. They do nothing to protect your ability to keep them working. Knowing the difference is what lets you act.
The 60-day grace period, briefly
Most U.S. nonimmigrant workers get up to 60 days after employment ends to change status, transfer, or depart. This covers E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN holders and their dependents. It's a ceiling, up to 60 consecutive days or the end of their validity, whichever comes first, not a guarantee.
Read the fine print. The grace period is discretionary, so it can be granted or withheld. It's generally available only once per validity period. And no work is allowed during it without a new petition, which means the runway is for fixing status, not for keeping the job going.
There's a live risk here, too. DHS has proposed eliminating the grace period entirely. That rule isn't final, and the 60 days currently remain in effect, but it's worth watching if your team relies on that buffer.
Being stuck outside the country is different
The grace period assumes your employee is inside the United States. Leaving the country ends it. So a re-entry denial or a travel ban is a separate problem with no tidy 60-day fix, the clock people count on doesn't even start.
That's the scenario that catches teams off guard. You plan around 60 days, then discover the person is abroad and the buffer never applied. Now you're managing an open-ended gap with no built-in deadline to work toward.
What this means for you
The immigration clock protects the person's status. It does nothing to preserve their ability to keep working for you. Those are two different problems, and only one of them has a lawyer assigned to it by default.
That gap is yours to close, and closing it is a business decision, not a legal one. The faster you treat it that way, the more options you keep.
Your real options when an employee can't come back
You have four realistic paths, and only one is built for a "we already have this person" situation. Here's each, honestly, including the ones that look easier than they are.
Wait it out and hope
Sometimes fine for a short, clearly temporary disruption, a delayed flight, a consulate appointment a week out. But it usually leaves the person unpaid or non-compliant and the project stalled. For anything beyond a few days, hoping isn't a plan. It's just a delay before you have to choose one of the options below anyway, often with less time and more pressure than you have now.
Reclassify them as a contractor
This is fast, and that's the appeal. It's also risky. You take on misclassification exposure, you lose the control that defines an employment relationship, and it rarely fits a full-time role the person already held. Regulators and tax authorities tend to see through a full-time employee relabeled overnight, and the penalties land on you, not the worker. It can also quietly change the person's benefits and protections in ways neither of you wanted.
Open a local entity where they are
This is the "proper" route, and it's legitimate. It's also months of setup and heavy ongoing cost, incorporation, tax registration, local payroll, banking, and continuing compliance overhead. That's a lot of machinery for what may be a single employee. If the disruption resolves in a quarter, you're left maintaining an entity you no longer need, plus the cost and paperwork of shutting it down. It's the right call when you're genuinely committing to a market, and overkill when you're not.
Employ them through an Employer of Record
An EOR lets you re-anchor the employment relationship in the country the person is actually in. They get a compliant local contract, local payroll, and benefits, and you keep them on your team, no entity required. It's the only option on this list that solves both problems at once: the person's legal right to work there and your legal basis to employ and pay them. It also scales back down cleanly if the situation changes, without an entity to unwind. For a continuity emergency, this is the option designed for the job.
How an Employer of Record keeps the relationship intact
An Employer of Record becomes the legal employer in the country where your person now is, while they keep working for you day to day. You keep the working relationship, direction, and output. The EOR carries the local legal and payroll obligations, the contract, the tax filings, the statutory benefits, so the person stays employed and compliant where they actually are.
The continuity path is straightforward. The person is now in Country X. The EOR issues a compliant local contract, then runs local payroll, taxes, and benefits under its own entity there. Your employee stays on the team without a gap, doing the same work for the same people.
Speed is the whole point here, because this is an emergency, not a planned expansion. Onboarding in days and payroll in 5–7 days means no pay gap and no compliance improvised on the fly, versus the 20-to-30-day timelines that are still normal in this industry. That's the difference between keeping someone and losing them. When someone's income is on the line, weeks of setup aren't neutral; they're the reason good people walk.
Two things make the difference legitimate rather than cosmetic. Owned in-country entities give you real standing in the country, not coverage quietly outsourced to a third-party vendor you never chose. And built-in compliance alerts help you stay ahead of shifting local labor law instead of learning about a change after it costs you. In a fast-moving policy environment like the one September 2025 exposed, staying ahead is the whole game.
This is where Borderless AI fits. As an AI-native EOR with 100% owned entities across 170+ countries, it generates compliant local contracts fast, runs payroll in 5–7 days with zero salary deposits or pre-funding, and backs it with 24/7 in-house North American support — rated 4.9 out of 5 on G2. That combination is what turns a status emergency into a compliant, continuous employment relationship in days, not months. Your employee keeps getting paid, your project keeps moving, and you keep the person you hired.
Build for the next disruption before it happens
Treat cross-border mobility disruption as a "when," not an "if." The September 2025 scramble was one trigger; travel bans, consulate backlogs, visa revocations, and layoffs keep producing the same outcome. The teams that stay calm are the ones who decided their next move before they needed it.
A short checklist keeps you ready:
- Know which team members hold roles that depend on a specific location or immigration status. Those are the people a policy shift can strand overnight.
- Keep a compliant continuity option pre-vetted, so you're not sourcing a solution mid-emergency. Decide who you'd call before the flight gets canceled.
- Separate two questions you may be treating as one: where someone lives, and how you legally employ them. Answer them independently, and a change in the first stops forcing a crisis in the second.
Reframe what winning looks like here. A company that can employ people wherever they happen to be keeps access to talent that competitors lose the moment a border closes. That's not just risk management; it's a hiring advantage. Talent exists everywhere, even when the legal path to employing it doesn't follow people across borders on its own, and closing that gap is exactly the work an EOR does.
The next disruption will arrive on its own schedule. Deciding how you'll keep your people employed and paid, before you need to, turns a potential emergency into a routine adjustment.
Frequently asked questions
Can we keep employing someone who can't get back into the country?
Yes. You re-anchor the employment relationship in the country where the person actually is. An EOR gives you a lawful basis to employ and pay them there without opening your own entity.
If our employee is stuck abroad, can they keep working for us legally from there?
They can, but the legal basis has to sit in the country they're now in, not the one they left. An EOR provides that basis, a compliant local contract, payroll, and benefits, so their work is covered where they actually are.
What are our compliance obligations if an employee's work location changes overnight?
A new work location can trigger local employment, tax, and permanent-establishment rules in the host country, not automatically, but often enough that you have to manage it. The practical first step is confirming who your legal employer is there before the next payroll runs.
How long does an employee have to stay in the U.S. after losing their job?
There's up to a 60-day grace period to change status, transfer, or leave, but that clock addresses their status, not your staffing. It's discretionary and currently in effect, and DHS has proposed eliminating it.
How fast can an Employer of Record onboard a stranded employee?
Borderless AI onboards in days and runs local payroll in 5-7 days, so there's no pay gap. That speed is often the difference between keeping the person and losing them.
