The economic impact of the coronavirus pandemic and the sudden transition to a work-from-home model for much of the country has left employers that sponsor H-1B workers with many questions.
Seyfarth immigration attorneys Mahsa Aliaskari, Tieranny Cutler, Dawn Lurie and Angelo Paparelli responded to queries about changes in working conditions, furloughs and layoffs for employers with H-1B workers on staff.
SHRM Online: Are workers with H-1B visas able to perform remote work?
Cutler: Yes, an H-1B worker may work remotely from home if certain conditions are met. Changes in worksite within the same metropolitan statistical area do not require new filings with the U.S. Department of Labor (DOL) or U.S. Citizenship and Immigration Services (USCIS).
Last month, the DOL confirmed that a new labor condition application (LCA) is not required so long as the home office or remote work location is within normal commuting distance of the employer's permanent location.
SHRM Online: Is the LCA notice posting still required if the employee is working from home?
Cutler: Yes. A hard-copy notice needs to be posted at the new worksite for a minimum of 10 days. In these circumstances, [during the pandemic], a home office qualifies as a new worksite.
SHRM Online: Can H-1B workers be moved from full-time to part-time status?
Lurie: Yes, but if the USCIS visa petition noted full-time employment, this would likely be considered a material change. Material changes will require an amended filing with USCIS.
SHRM Online: How do pay cuts across the organization affect H-1B workers?
Paparelli: It depends. The required wage for these visa categories is the greater of the actual wage level the employer pays to similarly situated employees, or the prevailing wage level for the occupation in the area of employment.
If companywide pay cuts mean the employee's salary does not fall below the required wage, then the employer may not need to file a new LCA or an amended petition with USCIS. The employer should document the changes to its pay system in its business records and in the public access file. If companywide pay cuts mean the employee's salary does fall below the required wage or below the wage stated in the LCA and petition filed with USCIS, this will require additional analysis and potentially a new LCA and amended petition submission to USCIS.
SHRM Online: How do furloughs affect H-1B workers?
Paparelli: Employers must continue to pay full-time and part-time H-1Bs and other specialty-occupation employees the required wage reported to the DOL if the employee "is not performing work and is in a nonproductive status due to a decision by the employer," [according to federal guidelines].
It is not necessary to pay the required wage if an employee experiences a period of nonproductive status due to conditions that make him or her unable to work. The DOL has not clarified whether a public-health emergency, such as COVID-19, in which a federal, state or local government has issued an order to shelter in place at one's home, would classify the employee as unable to work.
Any assessment is nuanced and very fact-specific, and decisions should be discussed with your immigration attorney.
SHRM Online: What are the consequences of not paying the required wages during a furlough?
Lurie: Failure to continue to pay the required wage during furloughs can be enforced by the DOL's Wage and Hour Division through a variety of sanctions. These include civil fines, back-wage payment orders, debarment of the employer for periods of one to three years from petitioning and employing foreign workers under all employment-based provisions of the immigration laws, and other "make-whole" equitable relief.
Enforcement of these types of violations is often derived from whistleblower complaints, even after termination from employment. This means that an employer may continue to deal with the repercussions of furloughs and layoffs caused by the COVID-19 crisis for years to come.
SHRM Online: Do H-1B workers lose visa status if furloughed?
Aliaskari: In general, these employees must work under the terms and conditions described in the petition and visa application in order to maintain lawful status. USCIS will consider time spent in nonproductive status during a furlough as benching, an unlawful practice where workers are not paid while they wait for projects or work. But this alone may not automatically cause the worker to be considered by USCIS as having violated their status. An assessment of what this means for particular employees is fact-specific and should be discussed with your immigration attorney.
SHRM Online: Can H-1B status be maintained if employees are laid off under circumstances related to COVID-19?
Aliaskari: No. When employment ends, the employer is required to update USCIS of the termination of employment. In addition, to end all related visa obligations and wage obligations and qualify as a bona fide termination of employment, the employer must:
- Confirm the termination to the employee in writing and notify USCIS that the terms of employment have changed.
- Withdraw the LCA from the DOL.
- Offer to pay reasonable transportation costs for the employee to return to their country of nationality or permanent residence.
SHRM Online: Do H-1B workers need to leave the U.S. immediately after termination?
Cutler: No. There is a 60-day grace period. The individual may remain in the U.S. for up to 60 days following the termination or for the remainder of the existing visa petition and status validity period, whichever is shorter.
During this grace period, the employee may search for a new employer and may also be rehired by the original employer. If rehired, the original employer must file a new petition if it has notified USCIS of the prior termination.