Employing H1B workers: compliance guidance during the coronavirus crisis

Employers of H1-B visa holders in the US face additional and specific regulatory challenges arising from the pandemic.

The unprecedented circumstances have precipitated workforce changes such as remote working, furloughs, layoffs, reduction in hours and business shutdowns, impacting employers’ ability to maintain immigration compliance duties.

In response to the crisis, some of H1-B compliance requirements have been relaxed temporarily, which we summarise below.

This is, however, an evolving area and it is important to emphasise that all other compliance duties remain in place. Employers are advised to retain contemporaneous records of COVID-19 related activity for their H1-B workers.

If you have any queries or specific issues, please contact us for advice.

H-1B changes in working conditions

What is the situation for H1-B workers placed to work in a location not listed in the approved Form ETA-9035?

Employers are required to account for any H-1B wage or location changes, as well as any benching deviating from the H-1B Labor Condition Application (LCA) attestations.

H-1B regulations allow H-1B employees to work unlimited days off-site in locations that are within the normal commuting distance from the work location listed in the employer’s H-1B petition. Normal commuting distance is generally considered to be a one-hour commute or less.

H-1B workers who are working in remote locations that are outside of normal commuting distance would be limited to 30 days in the remote location before the employer would need to file an H-1B amendment with a new LCA and pay the wage associated with the remote location.

This means compliance will be substantially easier if the employee lives within a normal commuting distance (50-60 miles) of the regular worksite and is currently working from home.

Any change in work location means the LCA must be posted physically or electronically for 10 calendar days total before an H-1B employee commences work at the new location.

The Office of Foreign Labor Certification has acknowledged that many businesses may not be able to meet this requirement prior to relocating an H-1B employee, and notice will now be considered timely when placed as soon as practical and no later than 30 calendar days after the worker begins work at the new location.

H-1B leave of absence

Short, paid leaves of absence due to required quarantine for H-1B workers would not raise any immigration implications, as long as the periods of leave are approved and taken according to company policies in place at the time.

If leave became extended or went beyond allowable company policies, such that termination was required, the foreign national worker would be in jeopardy of being considered out of legal immigration status and could become subject to removal from the United States.

Employers are also required to pay an H-1B employee the required wage listed in the LCA under the “no-benching” obligation to pay for nonproductive time.

Furloughing H-1B workers

Where a worker is in H-1B status, amendments to their terms of work may trigger concerns regarding regulatory compliance on the part of H-1B employers who are obliged to pay the worker the wages in the H-1B petition.

Furthermore, the H-1B employee must continue working for the employer or risk being in violation of nonimmigrant status.

A furlough will place an H-1B worker in nonproductive status, and since the decision to furlough is made by the employer, its obligation to pay the required H-1B wages continues throughout the duration of the employee’s H-1B status.

The only circumstance in which this obligation does not apply is where the employee elected to be nonproductive, e.g., a leave of absence to travel or extended maternity leave. Even when such leave is voluntary, it is valid only insofar as permitted under the employer’s benefit plan or other statutes such as the Family and Medical Leave Act, the Americans with Disabilities Act, and the CARES Act.

Reductions in H-1B worker hours or salary

Instead of a placing an H-1B worker on furlough, the employer may choose to reduce the hours of the worker. Doing so will trigger the requirement to file a new LCA, and consequently to amend the H-1B petition.

The DOL will view any reduction in hours below full-time as “benching” and will deem the H-1B employee to be in nonproductive status because of a decision of the employer. In such an event, the employer must still pay the salary listed in the LCA.

If the employer chooses instead to reduce the salary of an H-1B worker and apply the pay reduction at the same rate to all employees within the same occupation company-wide (e.g., all software developers), the employer maintains compliance with the DOL’s LCA regulations and avoids having to file an amended petition.

The foregoing is applicable only where the H-1B employee’s salary is not brought below the prevailing wage listed on the LCA. Any accommodation to sustain the H-1B worker’s salary at the prevailing wage where an across-the-board pay cut was made may trigger concerns of discrimination against U.S. workers.

If the employer lowers the salaries for H-1B employees below the required wage, future bonuses may be credited toward satisfaction of the required wage obligation if their payment is assured (i.e., the bonuses are not conditional or contingent on some event such as the employer’s annual profits). A decision to reduce both hours and salary will require the employer to file an amended H-1B petition.

Termination of an H-1B worker employment

If an employer decides to terminate an H-1B worker prior to the end date on the H-1B petition, the employer has to notify USCIS in writing that the employment relationship has been terminated and also offer to pay the cost of return transportation home.

Retain a record of this offer and payment of the return transportation costs on the employee’s personnel file.

In some cases, the employee will be entitled to a 60-day grace period, and if the employer is able to, it may rehire the employee at any point prior to the end of the grace period by filing a new H-1B petition, as long as there was a bona fide termination of the previous employment relationship.

US immigration advice

NNU Immigration is actively monitoring the impact of the pandemic on US immigration policy and application processing.

As the situation continues to develop, please contact our US immigration specialists for the latest advice for your specific circumstances.

This article does not constitute direct legal advice and is for informational purposes only.

Last updated: 26 April 2020