COVID-19: What Employers Need to Know about H-1B Employees

What Employers Need to Know About H-1B Employees During the COVID-19 Pandemic: Immediate Need to Post Updated LCAs for Teleworking Employees and Issues Related to Layoffs or Furloughs.

Companies employing individuals holding H-1B specialty occupation visas are already aware that the status comes along with a lot of regulations and requirements.  During the COVID-19 pandemic, the issues all companies are facing in terms of telework operations, reduction in wages, and furloughs and layoffs will require closer scrutiny if any H-1B employees are impacted.

Teleworking Employees

Most offices have transitioned to remote operations in light of the various state mandates issued over the past month.  If any H-1B employees have transitioned to working at home instead of the work location listed on their labor condition application (LCA), immediate action must be taken.  Generally, if that H-1B employee’s new work location (in this instance, their home) is within the same geographical area (usually areas within normal commuting distances), and no other terms or conditions of the employment have changed, then the only required action is that a notice of change must be placed at the new worksite location for 10 days.  The employer will not need to file a new LCA or amended petition in this circumstance.  Due to the pandemic, the U.S. Department of Labor will consider the notice timely when placed “as soon as practical and no later than 30 days after the worker begins work at the new worksite location.”  Because most offices transitioned to remote operations by mid-March, such notice should be immediately posted to comply with the notice-posting requirements.

Potential Reduction in Wages, Furloughs, or Layoffs

In addition to transitioning to remote operations, many employers are facing tough decisions as to whether or not there is a need to reduce wages, furlough, or layoff any employees as a result of the economic impact of the pandemic.  

The wages of an H-1B employee may be reduced, without the need to file a new LCA and H-1B petition, if (1) the wages of all employees (or at least all employees in the same position as the H-1B) are reduced across the board; and (2) the resulting wage is still above the prevailing wage listed in the LCA.  If wages are reduced, the decrease and the reasoning for the reduction should be noted in any subsequent petition to extend or amend the petition.  The change must also be documented in the LCA public access file.  Any reduction in wages that does not meet the above requirements would require the employer to file a new LCA and H-1B petition.  Alternatively, if an employer reduces the hours of the H-1B, then it may be required to file a new LCA and H-1B petition.

If reduction of wages is not practical or possible (or sufficient to rectify economic hardship), the alternatives considered by an employer may be to furlough or lay off workers.  It is important to note that H-1B employees must be paid for nonproductive time, unless that employee requested the time off work for some unrelated reason (such as unpaid vacation).  Accordingly, H-1B employees may not be lawfully furloughed.  This is true even in the case of a company-wide furlough.

Alternatively, an H-1B may be terminated just like any other employee as part of a layoff.  In this event, the employer is required to (1) notify USCIS immediately that the H-1B is no longer employed; (2) withdraw the LCA; and (3) pay the reasonable costs for the employee to return to his last residence abroad (if the employment is terminated prior to the end of the authorized period of employment).  Additionally, if the termination occurs prior to the end of the authorized period of employment, the H-1B employee has a grace period that is the lesser of sixty (60) days or the remaining period of authorized time in H-1B status to leave the country.  This grace period does not authorize the individual to be employed during this time, but they may remain lawfully in the United States.  The H-1B employee may be eligible to change employers or change to another non-immigrant status as long as the necessary documentation is timely filed prior to the exhaustion of the 60-day grace period.

There are a lot of difficult decisions that all employers are facing during this time, and it is important to keep track of the legal obligations surrounding any H-1B employees to avoid fines or other repercussions.

For more information about the legal issues related to a change in the working conditions of an H-1B employee and for any other employment concerns, contact Marissa Lilja or any member of the employment group.

This information has been prepared by Tydings for informational purposes only and does not constitute legal advice.