Employers across the United States are facing many employment decisions regarding their workforce and operations. Many are implementing closures, work from home policies, furloughs, and closures in order to reduce costs during the COVID-19 slowdown. Employers that employ non-immigrant works holding H-1B status must adhere to additional legal obligations as required by the Department of Labor and USCIS regulations.
In the event where the employer decides to lay off the H-1B employee, the employer must notify the USCIS in writing, providing the date of termination. In addition, the employer must offer to pay the H-1B employee a one-way ticket to his/her home country. The employer is not responsible for paying for H-1B dependents airfare.
Work from Home
The spread of COVID-19 has forced many employers to implement work from home policies in order to protect their employees and comply with local shelter in place orders. However, an H-1B employee is only permitted to work in the location specified in the H-1B application filed with the USCIS. Employers with an approved LCA may move works to other worksite locations, without needing to file a new LCA, provided that the worksite locations are with the same area of intended employment (MSA) covered by the approved LCA. Posting notice is required, and due to COVID-19, the DOL announced that the notice would 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 location.
If the residence is outside the MSA listed in the current H-1B paperwork, the H-1B employee can work there for up to 30 workdays per year without the need for an amended H-1B filing. If the employee will be working outside the MSA longer than 30 days, then the best practice is to file an amended H-1B filing with the USCIS.
DOL and USCIS H-1B regulations do not allow “benching” for H-1B employees. In other words, H-1B employees cannot be put on unpaid leave due to employment-related conditions. Therefore, if an H-11B employee is furloughed due to the COVID-19 impact on the employer’s business operations, the employee must be paid for that time.
Change to Part-Time
Many employers are forced to reduce operations due to the current economic downturn. As a result, they are taking different measures helping them to stay open, including converting full-time employees to part-time employees. H-1B workers are allowed to work part-time, provided that USCIS is notified by an amended H-1B petition.
Due to the COVID-19 impact on employers and employees, the rules are regulations are constantly changing. H-1B workers require special considerations, and every case is different. For a comprehensive evaluation of your options, you can call my office at 469–994–9407 or fill out the contact form http://ustunlawgroup.com/contact-us/ on our website.