As the COVID-19 pandemic spreads, so too 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.
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 workers
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 range of 50 miles one-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 work station 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 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.
Reduced hours & pay
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 DOL 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. 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 US.
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.