Considerations For Employers Of H-1B Workers During The Covid19 Pandemic

During the COVID-19 situation, employers of H1B workers should be confirming the following: 

1. Has the work location for any H-1B employee changed? Is he or she now working from home? If yes, is that home office within a normal commuting distance? 
2. Do H-1B employees continue to be employed on the same terms on which the employer filed the petition for such status (i.e. Full-time? Same duties?)? 
3. Has any H-1B employee been laid-off or furloughed?

Under federal law, any significant change to the conditions of employment for an H-1B worker may trigger a need to file a petition requesting an amendment of the visa status and/or report such change to either the US Department of Labor or the US Citizenship and Immigration Service or both.  If you have had any of these situations arise, please contact Amy Erlbacher-Anderson, Scott S. Moore, or Kara Stockdale to discuss the facts and determine the best course of action.  

Working from Home

The most common change that has come out of the COVID-19 pandemic is a change to employment to “work from home”.  Unless the home address was listed as a worksite in the ETA Form 9035, Labor Condition Application, (LCA) filed with and approved by the U.S. Department of Labor as part of the H-1B petition process, action may be required to meet USDOL regulations and maintain such H-1B visa status for the individual.

If an H-1B worker begins working from home, the action that must be taken depends on the location of the home office as either in the “area of intended employment” or outside it.  The “area of intended employment” is defined by the USDOL as the area that is within “normal commuting distance” of the worksite listed on the LCA and in the H1B petition as the physical location of employment.  If the employee is within this area, the employer must provide the H-1B worker with a copy of the certified LCA and the H-1B worker must physically post the form in two locations in his or her home for 10 consecutive days.  Refrigerators, the backs of computer monitors, and book shelves in the home office have proven to be popular locations…and, yes, this sounds and is ridiculous, but is required by federal regulation and confirmed by the agency in recent FAQs. 

If the H-1B employee’s home is outside the “area of intended employment”, the employer can use the short-term placement rule to avoid a posting and the filing of a new LCA for the home office location if the work from home period will not last more than 30 “work” days, which can equate to up to six weeks, if the individual does not work weekend days.  However, if the work from home situation is extended beyond these 30 days, an amendment petition for the new location must be filed; and, depending on where the home office is located, a higher prevailing wage rate may be assigned to the position, requiring an increase in the employee’s salary for the duration of the work from home period.    

Changes to Employment Terms

A reduction in the hours an H1B employee works, whether short-term or long-term, represents a material change to their employment and triggers the need for the employer to file a petition with the USCIS to amend the individual’s H-1B visa status, including preparing, posting, and filing a new LCA.  Reductions in pay may or may not trigger an amendment petition requirements; USDOL regulations allow for changes in pay, possibly reductions, as long as the wages do not drop below the prevailing wage.  However, the USDOL looks at H-1B compensation issues pay period by pay period; so, an employer cannot reduce hours or pay for a few weeks, then “true up” an H-1B employee’s salary later in 2020. 

It has always been the position of the USCIS that any significant change to the employment of an H1B beneficiary must be reported to the USCIS in advance in the form of a petition requesting an amendment of the visa status.  Significant changes include a new worksite location as well as a change in the duties of the position.  Generally, if more than half of the duties of the position are different than those listed on the H-1B petition, an amendment of the visa status is required. 

Lay-Offs and Furloughs

Temporary layoffs (a few days or weeks) create an issue for an employer because the USDOL does not allow H-1B workers to be “benched” if there is no work available or during a temporary closure and requires that they be paid for any unproductive time off that is not voluntary.  H-1B compensation obligations are a strict liability – the employer either paid the H-1B employee what they were supposed to or they did not – and claims for back wages can be made by either the agency or the employee, even those who “volunteer” to go on unpaid leave.  The USDOL will likely not support mandated vacation or PTO for H-1B workers, even if every U.S. worker is required to do so, based on informal comments that this is seen as another form of benching. 

If an employer terminates an H-1B employee, the USCIS and USDOL must be informed, and the employer is required to offer to pay the reasonable cost of return transportation for the H1B employee.  This requirement applies only to the H1B worker and not their family nor their personal belongings.