H-1B Visas During Covid

The novel coronavirus (COVID-19) pandemic has presented new and unique challenges for U.S. 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 the availability of work and payment of at least the prevailing wage to maintain and/or extend their H1B status in the United States. Generally, temporary foreign workers are required to remain productive in order to maintain their H-1B status. The pandemic has for obvious reasons affected a worker’s ability to remain productive.

Due to the shelter-in-place orders, some U.S. 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 close their businesses entirely, laying off and furloughing workers.

These measures carry with them serious implications for the H-1B worker, in terms of ensuring compliance with H-1B visa status and satisfying Labor Certification requirements.

Many U.S. companies have moved their employees to remote working environments to protect their workforce and the public from COVID-19.

This has led employers and H-1B workers to ask a practical question: Does the implementation of a temporary remote working program pose any issues for H-1B workers?

Generally speaking, an H-1B worker can move to a new worksite so long as the worksite is within the same area of employment (as indicated on the certified labor condition application) and the terms and conditions of employment remain the same.

What does it mean for a worksite to be within the same area of employment?

A worksite is generally considered to be within the same area of employment if it is within normal commuting distance of the worksite indicated on the certified labor condition application.

To remain compliant, the U.S. employer must post a copy of the Labor Condition Application (LCA) filed in the worker’s most recent H-1B petition at the new worksite on or before the employee’s first day of employment at the new location and update the public access file.

The U.S. Department of Labor’s Office of Foreign Labor Certification has confirmed in its frequently asked questions released on March 20, 2020, that a new ETA Form 9035 labor condition application (LCA) is generally not required if an H-1B worker is moving to a new job location within the same area of intended employment (such as a home office within commuting distance). The DOL has also confirmed that the U.S. employer must provide either an electronic or hard-copy notice at the new worksite location for 10 days—in light of the COVID-19 pandemic—a notice is considered timely when placed “as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite locations.”

FAQ: https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%201_03.20.2020.pdf

What if the worksite is outside of the area of intended employment indicated on the certified labor condition application?

U.S. employers may move H-1B workers to unintended worksite locations outside of the area of intended employment listed on the labor condition application (meaning outside of commuting distance) if the move is made pursuant to certain short-term placement provisions. Please note that short-term placement provisions are subject to strict regulatory requirements. U.S. employers must file an amended H-1B petition reflecting these changes and stay within the bounds of the regulatory limitations. For further information about these regulations please contact our office for a consultation.

Are employers required to pay H-1B workers in non-productive status?

H-1B regulations require employers to pay H-1B workers their required wages (as indicated on the certified Labor Condition Application) throughout the employment relationship, including when the employee is in nonproductive status (with limited exceptions).

An employer may not need to pay an H-1B worker the required wage during nonproductive status, if the H-1B worker’s nonproductive status was due to (1) the worker’s voluntary absence from work and (2) the nonproductive period arose due to conditions unrelated to the employment.

Example: If an H-1B worker requests a period of absence to care for sick relatives, the employer is not required to pay the H-1B worker’s wages.

However, if the H-1B worker’s nonproductive status was the result of the employer’s decision, the employer is still required to pay the employee their required wages.

What if the employer furloughs the H-1B worker, do employers still need to pay wages?

A temporary furlough is the suspension of work without pay. Generally, H-1B regulations require employers to pay H-1B workers the prevailing wage as indicated 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 terms of the Labor Condition Application certified by the Department of Labor for the employee.

In some cases, if it is permitted 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.

Discharged H-1B Workers

If the employer decides to discharge an H-1B worker, the employer must offer to pay for reasonable costs of return transportation abroad for the discharged worker.

Grace Period for Discharged H-1B Workers

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 lawfully remain in the United States but is not authorized to work.

Can a discharged employee change employer during the grace period?

Discharged employees may be eligible to change employers during the grace period pursuant to H-1B portability provisions.

For information about H-1B portability please contact our office for a consultation.

What happens when an employer reduces a worker’s hours?

An employer must pay the wages certified by the Department of Labor in the Labor Condition Application.

If an employer reduces an H-1B worker’s hours, the employer must (1) file an amended H-1B petition with USCIS reflecting “any material changes in the terms and conditions of employment or training or the alien’s eligibility as specified in the original approved petition,” including the reduction in hours from full-time to part-time and (2) obtain a new certified Labor Condition Application from the Department of Labor reflecting the change in hours and prevailing hourly wage.

Is an amended petition required where, due to across-the-board salary cuts, an H-1B beneficiary earned less than the offered salary indicated on the H-1B petition filed with USCIS, but still above the prevailing wage certified on the LCA?

After consulting with the Department of Labor, USCIS providing the following response to this question:

“The DOL is sensitive to the fact that wages can and sometimes do go up and down based on economic conditions. In the circumstance described in your question, there would be no need for a new LCA or a new I-129 petition provided that the employer was still paying the “required wage” [meaning the higher of the applicable prevailing wage or actual wage]. Any change in the beneficiary’s wage rate must be disclosed in the next H-1B petition filing with [USCIS]. It is important that any wage change be documented in the employer’s LCA public disclosure file and disclosed to the [USCIS] in the next H-1B filing.”

In short, while a new LCA or I-129 petition would not be required, the wage change must be disclosed to USCIS in future filings and in the employer’s LCA public disclosure file.

A “layoff” for an H-1B employee is a termination of the employer-employee relationship.

In any situation where the H-1B worker is no longer abiding by the terms and conditions of their Labor Condition Application and H-1B petition, the H-1B worker is no longer in H-1B status.

Employer Obligations

For every layoff of an H-1B workers, employers must document the circumstances surrounding the termination, provide written notice to the employee, offer to pay reasonable costs of travel for the employee to return to his or her last country of residence abroad, request to withdraw the H-1B petition for the employee, and withdraw the Labor Condition Application for that petition. Employers may choose to give employees time to find new employment before withdrawing the petition, although this is not required.

If you are an H-1B dependent employer, additional requirements will apply.

If you have questions about whether your employer conducted a “bona fide” termination meaning that your termination was made in good faith you must contact an attorney to evaluate the circumstances of termination.

Special considerations may apply to H-1B dependent employers who have:

• 25 or fewer full-time equivalent employees and at least eight H-1B workers; or
• 26 to 50 full-time equivalent employees and at least 13 H-1B workers; or
• 51 or more full-time equivalent employee of whom 15 percent or more are H-1B workers.

What types of additional requirements may apply to H-1B dependent employers?

Special attestation requirements apply to H-1B dependent employers.

An H-1B dependent employer is prohibited from displacing a U.S. worker in its own workforce within the period beginning 90 days before and ending 90 days after the filing of an H-1B petition, unless the H-1B petition was filed on behalf of an “exempt” beneficiary (an individual holding at least a master’s degree or paid at least $60,000 per year).

What does it mean to be displaced?

A U.S. worker is displaced from a job under the H-1B program if the employer lays off the U.S. worker from a job that is essentially the equivalent of the job for which the H-1B worker is sought.

What is an “essentially equivalent job?”

An “essentially equivalent” job is a job that has the same core responsibilities, requires workers with substantially equivalent qualifications and experience, and is located within the same commuting area.

What does the DOL consider a layoff?

A “lay off” means to cause the worker’s loss of employment, other than through a discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, or the expiration of a grant or contract. A “lay off” does not include a situation in which the U.S. worker is offered alternative employment.

An alternative employment offer is an offer to a U.S. worker, as an alternative to loss of employment, of a similar employment opportunity with the same employer at equivalent or higher compensation and benefits than the position in which the employee was previously employed regardless of whether or not the employee accepts the offer.

Penalties for H-1B employers who displace U.S. Workers

If a U.S. worker was displaced, an H-1B employer can be assessed a civil money penalty up to $35,000 (and can be subject to a three-year debarment) for any willful violation of its attestation obligations during the period the violation occurred.

An employer who fails to comply with H-1B wage requirements is subject to investigation and assessment of penalties. Non-compliance is usually investigated following a complaint from an employee. After receiving an employee’s complaint, the DOL’s Wage and Hour Division opens an investigation and decides whether to assess penalties including:

• civil penalties of up to $7,846 per violation;
• back wages as stated in the LCA to be paid to H-1B employees;
• debarment from use of the H-1B program; and
• other administrative remedies as appropriate.

The DOL may also decide to investigate an employer for non-compliance with wage requirements where:

• [The DOL] receives specific credible information from a reliable source (other than a complainant) that the employer has failed to meet certain LCA conditions, has engaged in a pattern or practice of failures to meet such conditions, or has committed a substantial failure to meet such conditions that affects multiple employees;
• The secretary of labor has found, on a case-by-case basis, that an employer (within the last five years) has committed a willful failure to meet a condition specified in the LCA or willfully misrepresented a material fact in the LCA. In such cases, a random investigation may be conducted; or
• The secretary of labor has reasonable cause to believe that the employer is not in compliance. In such cases, the secretary may certify that an investigation be conducted.

Form I-9 is the Employment Eligibility Verification form that must be completed by an employer and new employee within 3 days of being hired. Normally, an employer is required to physically inspect the worker’s identification and work authorization documents to ensure that the worker is lawfully authorized to work. However, on March 20, 2020, DHS announced that employers with remote operations are permitted to inspect the required documents remotely by email, video link, fax, etc.

Employers are required to re-inspect the worker’s documents within three days of when normal business operations resume and complete the Form I-9 with the notation “COVID-19 – documents physically examined on _______[date]” in the Additional Information field.

Employers may also use an appointed agent to physically inspect an employee’s documents on an employer’s behalf—appointed agents are anyone the employer designates.

Link: https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance

On March 20, 2020, the U.S. Department of State announced the temporary suspension of all routine visa services at all U.S. Embassies and Consulates worldwide, including appointments for H-1B visa eligibility and issuance of H-1B visas.

Unfortunately, this means that H-1B workers with approved petitions who have not yet entered the United States, will not be able to obtain the required visa foil in their passports enabling them to enter the United States until visa services have resumed.

Link: https://travel.state.gov/content/travel/en/traveladvisories/ea/routine-visa-services-suspended-worldwide.html

At the moment, USCIS service centers continue to operate normally, and there is no anticipated change in the adjudication of petitions for new H-1B employees or change of status petitions.

Moreover, no announcements have been made indicating that the H-1B process will slow down. H-1B petitioners selected in the recent lottery will still be able to submit petitions on behalf of their workers on April 1st as expected.

The Sapochnick Law Firm will continue to monitor developments with respect to policy changes and will post updates on Visalawyerblog and in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available.

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