Many employers are struggling with reduced work and with shelter-in-place directives due to the corona virus. I've had a lot of questions about how this affects the company's foreign national workforce, especially H-1B workers. If you need specific answers for your situation, please feel free to call me.
Do I need an amended petition or Labor Condition Application if my H-1B employees are working from home?
If the employee’s home is within normal commuting distance of the office where they normally work, then no new LCA or amended petition is required. Assuming they are working from home, there is also no need to post the existing LCA at their home.
If the employee is working from home outside commuting distance of their normal worksite (e.g. your office is in Dallas but the employee is working from their sister’s house in Philadelphia), see below.
What if my H-1B employee is working from another location, not at their home?
If the new location is within normal commuting distance of the office where they normally work, then no new LCA or amended petition is required. However, the existing LCA must be posted at the new worksite. Under normal circumstances, this LCA notice must occur on or before the date that the worker starts work at the new locations. However, DOL is being more flexible now and says 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.” (See DOL FAQs here).
If the new location is not commuting distance from the usual worksite, the employer may be able to use the short-term placement provisions of the H-1B regulations. In summary, the employer must continue to pay the required salary, must pay travel expenses, and the placement can’t be for more than 30 workdays in a one-year period.
What happens if I need to bench or furlough H-1B workers?
If a H-1B worker is put on unpaid leave, it might violate the anti-benching rules under the American Competitiveness and Workforce Improvement Act (ACWIA) and the related DOL regulations. These rules state that the employer violates the wage requirements of the LCA if the employer does not pay the employee for unproductive time when that status is “due to a decision by the employer”. This includes reasons such as lack of work assignments, lack of permit or license, or plant shutdown.
An employer can stop paying a salary if the nonproductive period is due to “conditions unrelated to employment” and is at the employee’s “voluntary request and convenience” (e.g. caring for a sick relative) or due to circumstances that render the employee unable to work (e.g maternity leave), but only if the leave period is not subject to pay requirement under the employer’s benefit plan or other statutes, and that it is approved and taken according to company policies in place at the time.
Can I reduce the H-1B worker’s hours?
Yes, but you would need to file a new LCA and an amended H-1B petition to show part-time employment.
What happens if I lay off a H-1B worker?
If you need to lay off a H-1B worker, you should withdraw the LCA with DOL and withdraw the H-1B petition with USCIS. The ensures no ambiguity about whether the worker was terminated. There is an argument that if the LCA and H-1B petition are not withdrawn, the wage obligations continue.
Elaine Martin has been practising US and global immigration law since 1997. She is an immigrant herself (from Ireland), so has a special understanding of the legal and emotional challenges involved in relocating to a new country.