As the COVID-19 pandemic spreads, so does uncertainty among businesses and their H-1B employees. Below, we share some guidance on how working remotely, reduced hours, and termination could impact H-1B workers and their employers.
The novel coronavirus pandemic has presented unique challenges for US employers and the temporary foreign workers they employ. Temporary foreign workers on H-1B visa status have been particularly afflicted by the pandemic because they are reliant on payment of at least the prevailing wage and the availability of work to maintain and/or extend their H1B status in the United States.
In order to maintain their H-1B status, temporary foreign workers are usually required to remain productive. The pandemic has for obvious reasons badly affected a worker’s ability to remain productive. Some US employers have been forced to scale back operations significantly, while others have implemented remote working options, and in the worst cases some have been forced to shut their businesses altogether, laying off and furloughing workers.
These measures have severe outcomes for the H-1B worker, in terms of satisfying Labor Certification requirements and ensuring compliance with H-1B visa status.
Many employers are encouraging employees to work from home. H-1B employees must be provided the same working conditions as their colleagues. So, H-1B workers must have the option to work from home if their colleagues do.
H-1B employees are generally required to work either at their offices or within “normal commuting distance.” Although there is no definition for normal commuting distance, a distance of 50 miles each way is generally acceptable.
H-1B employees may be permitted to work outside this range for up to 60 days in a one-year period. However, they must meet certain criteria. First, they must maintain a workstation at their permanent worksite. Second, they must spend a “substantial amount” of time at the permanent worksite during the one-year period. Lastly, their place of residence and remote worksite must not be the same place. This last point defeats the purpose of working from home, and so their employer may be required to file a new Labor Condition Application (LCA).
The original LCA must be posted in an H-1B employee’s remote worksite (even if it is their home). If an H-1B employee lives outside normal commuting distance from their worksite and needs to work remotely, a new LCA may be required.
Many employers may choose to reduce their H-1B workers’ hours and salaries. Any change in a worker’s schedule or wage must comply with their underlying LCA.
The extent to which an employer may reduce their H-1B workers’ hours is restricted by what is specified in their LCAs. Full-time H-1B workers must remain employed on a full-time basis. Although there is no regulatory definition for full-time employment, the Department of Labor generally sets it at 35 hours or more per week, so an H-1B worker’s hours cannot be reduced below 35 hours. Part-time workers’ hours cannot fall below the minimum hours indicated in their LCA.
The extent to which an employer may reduce their H-1B workers’ salaries is also restricted by what is specified in their LCAs. First, the employee’s salary must be expressed as a range in their LCA. Second, the employee’s salary must remain within that range. Third, the employee’s salary must remain higher than the prevailing wage. Finally, part-time workers must not be paid for less than the minimum number of hours expressed in their LCA.
If an employer would like to reduce their H-1B workers’ hours or salaries beyond these limits, they may be required to submit a new LCA and H-1b petition.
Many businesses are laying off employees or placing them on furlough. This is tricky to do with H-1B workers, who are required to be paid the wage listed in their LCA. A temporary furlough is the suspension of a job without pay. Generally, H-1B rules require employers to pay H-1B workers the prevailing wage as shown on the LCA even in periods of mandatory company-wide furloughs. For H-1B workers, furloughs cannot trigger a suspension of pay. In the case of a furlough, the employer must abide by the regulations of the LCA certified by the DOL for the employee.
In a few cases, if it is allowed by state law and/or employer policy, furloughed H-1B workers may be required to use their accrued paid time off during the furlough period.
However, where a temporary furlough is prolonged, employers are expected to pay H-1B workers their regular wages throughout the furlough period, even if the employer requires the worker to use his or her accrued paid time off.
An employer cannot let an employee go without proving that the termination is “bona fide.” This requires the employer to cover the cost of the employee’s return to their country of citizenship or permanent residence. If the Department of Labor determines a termination is not bona fide, the employer may be required to pay back wages and the cost of the employee’s return to the United States.
H-1B workers who are laid off may be able to change employers within the 60-day grace period following their termination. Although their new employer will need to file Form I-129 alongside supporting documents, the H-1B employee can begin working as soon as USCIS issues a receipt notice (approximately two weeks after filing) and continue working while their application is pending.
H-1B rules require employers to pay H-1B workers their specified wages, as showed on the certified Labor Condition Application, throughout the employment relationship, including when the employee is in nonproductive status (with some exceptions).
While an H1-B worker has nonproductive status, an employer may not need to pay them the required wage, if the H-1B worker’s nonproductive status was due to
But, if the H-1B worker’s nonproductive status was the result of the decision of the employer, the employer is still required to pay the employee their specified wages.
If the employer is seeking to discharge an H-1B worker, the employer must pay for reasonable costs of return transportation to their home country for the discharged worker.
If an H-1B worker is discharged by their employer, the H-1B worker has a one-time single grace period of up to 60 days or until the existing validity period ends, whichever is shorter. During the grace period, the worker may legally remain in the United States but is not authorized to work.
Discharged employees may be permitted to change employers during the grace period pursuant to H-1B portability provisions.
For information about H-1B portability, please contact Passage Immigration Law for a consultation.
A foreign national with an H-1B visa must meet particular requirements to keep their status active. During the coronavirus pandemic, changes to many US workplaces have complicated their situation. Passage Immigration Law is a specialist immigration law firm with over 10 years of experience dealing with immigration applications. To discuss your situation with a seasoned immigration legal expert you can trust, contact us right away at (503) 427-8243, or you may schedule a consultation online.
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