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H-1B Workers and COVID-19 H-1B Workers and COVID-19

H-1B Workers and COVID-19

As we continue to evaluate the impact of the COVID-19 pandemic, employers of all sizes and across a variety of industries are evaluating their staffing needs, compensation schedules and work hours. Wage and/or hour reductions for sponsored foreign national employees may represent a material change in the pre-authorized terms and conditions of employment, triggering the need for an amended petition filing (prior to the date of proposed change). When it comes to making changes impacting H-1B workers, the rules are even stricter and such changes must be carefully considered well in advance. The H-1B visa category is highly regulated by both the U.S. Department of Homeland Security (through Citizenship and Immigration Services) and the Department of Labor and changes often require an amended petition filing with USCIS. Please see our prior article on how to address changes in work locations, including remote worksites, for H-1B and other visa sponsored employees. Similarly, there are very strict and specific wage and hour obligations associated with H-1B visa sponsorship as outlined below.

Wages: With respect to wages, employers are required to pay the higher of the actual wage or prevailing wage for the offered position in the area of intended employment as determined by DOL. Wage reductions, particularly those dipping below the minimum prevailing wage, are generally problematic and, if not in compliance with DOL regulations, could lead to penalties and fines against the employer, including back-pay, loss of the employee’s H-1B status and the employer’s debarment from the H-1B program.

Hours: Likewise, a reduction in hours from full-time to part-time is considered a material change in the conditions of employment, triggering the need for an amended H-1B petition prior to the date of the proposed change. Full-time employment is 35 hours or more per week, so if the sponsored foreign national’s hours are expected to drop below 35 hours per week to part-time status, an amended H-1B petition must be filed. Until the H-1B amendment is filed with USCIS, the employer remains obligated to compensate the H-1B worker on a full-time basis. Then, prior to returning the H-1B worker to full-time status, another amendment will be required to capture this additional change in employment status.

Furloughs: As employers contemplate possible furloughs, they should note that “benching” or nonproductive time is strictly prohibited for H-1B workers. Those workers must be paid at the required wage and consistent with the hours included in the H-1B petition filed on their behalf until the employment relationship is formally terminated and notice is sent to DOL. Regulations also require employers to treat their sponsored H-1B workers in a way that is consistent with the treatment of U.S. workers and adverse action against H-1B employees, such as termination of employment, should be carefully evaluated. Upon termination, employers are required to pay the H-1B worker’s return transportation to his/ her home country.

With respect to their H-1B workforce, employers are left with relatively few choices during these uncertain times: continue to employ the H-1B worker exactly as described in the H-1B petition; file an amendment to reduce hours and/ or compensation (as long as prevailing wage continues to be met); or terminate the H-1B worker to end the wage obligations careful to avoid national origin and/ or other possible discrimination claims.

If you have questions regarding potential changes to terms and conditions of H-1B employment or any other immigration questions, please contact Jenifer Brown, Christl Glier or Kristin Kelley.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
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