H-1B Considerations in Context: COVID-19, Remote Work, Office Closures, Furloughs, and Layoffs

Employers are facing numerous issues in light of the novel coronavirus (COVID-19) pandemic, including remote work, temporary office closures, furloughs, and layoffs. These issues may have particular implications for U.S. employees holding H-1B specialty occupation visas, as they are typically required to remain productive in order to maintain their legal status.

Temporary Remote Work

Many companies have instituted remote work policies so that employees can avoid physical contact and thereby “flatten the curve.” Generally speaking, an H-1B worker can move to a new worksite within the same area of employment (within normal commuting distance) as long as the terms and conditions of employment remain the same. The U.S. Department of Labor’s (DOL) Office of Foreign Labor Certification released frequently asked questions on March 20, 2020, regarding its operations during the COVID-19 pandemic. In this document, the DOL confirms that 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), a new ETA Form 9035 labor condition application (LCA) generally is not required. The employer must provide either electronic or hard-copy notice at the new worksite location(s) for 10 days; in the context of the pandemic, the DOL states that the notice will be 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.”

Movement of H-1B workers to unintended worksite locations outside the area(s) of intended employment listed on the LCA (i.e., outside of commuting distance) may also be allowed pursuant to certain short-term placement provisions specified in the regulations. Such short-term placement provisions are subject to a number of strict regulatory requirements; if a placement exceeds the limitations outlined in the regulations, then the employer must file an amended H-1B petition.

H-1B Non-Productive Status

The regulations governing foreign national employment require that H-1B workers be paid their regular wages, even while in a nonproductive status, unless the nonproductive period arose due to conditions unrelated to the employment and was taken at the employee’s voluntary request. For example, an employer is not required to pay an H-1B worker who requests a period of absence to care for sick relatives. Accordingly, the regulations require employers to pay H-1B workers in periods of mandatory company-wide furloughs. Unless otherwise prohibited by state law or the employer’s specific policy, employers may require furloughed H-1B workers to use their accrued paid time off, so long as workers are not required to do so before taking any leave for which they may be eligible under the paid sick leave provisions of the new Families First Coronavirus Response Act. However, if the furlough is prolonged, employers are still expected to pay the regular H-1B salaries through the furlough period. Employers may require furloughed H-1B workers to use their accrued paid time off, but if the furlough is prolonged, employers are still expected to pay the regular H-1B salaries through the furlough period. Alternatively, the employer may choose to discharge the employee, in which case the employer must offer to pay for reasonable costs of return transportation abroad for the discharged worker.

When employment ends, the H-1B worker is typically eligible for a one-time single grace period of up to 60 days or until the existing validity period ends, whichever is shorter. Although the individual is not authorized for employment during this grace period, he or she may lawfully remain in the United States. During this grace period, the individual may be eligible to change employers pursuant to H-1B portability provisions.

Reduced Hours

The employer is required to pay the wages certified by the DOL in the LCA. An employer must file an amended H-1B petition (Form I-129) to reflect “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 reduction of H-1B work from full-time (35 hours or more per week) to part-time. Such reduction would require the employer to obtain a new LCA from the DOL and file an amended H-1B petition with U.S. Citizenship and Immigration Services (USCIS), setting minimum hours worked and the prevailing hourly wage.

Across-the-Board Salary Reductions

While the regulations do not specifically address across-the-board salary reductions, the American Immigration Lawyers Association (AILA) did raise a related question to USCIS on this topic in 2003. Specifically, AILA asked USCIS to confirm if an amended petition would be required where, due to across-the-board salary cuts, an H-1B beneficiary earned less than the offered salary stated on the H-1B petition filed with USCIS but still above the prevailing wage certified on the LCA. USCIS consulted with the DOL, providing the following answer:

“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.”

H-1B Dependent Employers

H-1B dependent employers may be subject to additional requirements. An employer is considered “H-1B dependent” if it has:

• 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.

H-1B dependent employers are subject to attestation obligations regarding recruitment and displacement of U.S. workers. Specifically, 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).

DOL considers a U.S. worker to be displaced if the employer lays off the U.S. worker from an “essentially equivalent job”—one that has the same core responsibilities, requires workers with substantially equivalent qualifications and experience, and is located within the same commuting area as the H-1B job. DOL excludes from the definition of “layoff” situations involving discharge for inadequate performance, violation of workplace rules, or cause; voluntary departure; voluntary retirement; or the expiration of a grant or contract. A “layoff” does not include a situation in which the U.S. worker is offered alternative employment, defined as a similar employment opportunity with the same employer at equivalent or higher compensation and benefits, regardless of whether the U.S. worker accepts the offer.

DOL Investigations and Penalties for Non-Compliance

Employers that fail to comply with H-1B wage requirements may be subject to the following penalties:

• 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.

These penalties typically result from a DOL investigation triggered by a complaint filed by an employee. The DOL’s Wage and Hour Division has stated that investigations may also arise in the following contexts:

• [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.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to the policy changes and will post updates on our Immigration blog and in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available.