Changes in Work Conditions during COVID-19
In response to the ongoing COVID-19 outbreak, many local and state governmental authorities are instituting social distancing. This, in combination with the U.S. and global economies especially in the stock market has prompted some employers to evaluate and assess their business operations. Here are some tips if your employer decides to suspend, furlough, layoff, reduce hours, or otherwise render an employee unproductive during the crisis.
H-1B1 and E-3 nonimmigrant visas can be under non- productive status during the COVID-19.
Non-productive status is defined as any time during the validity of the Labor Condition Application (LCA) and H-1B petition where an employee is unable to work. When an employee is in a non-productive status due to a decision of the employer (e.g., due to a lack of work), the employer continues to be obligated to pay the required wage. On the other hand, an employer is not required to pay the required wage to an employee in non-productive status, when the employee is non-productive at the employee’s voluntary request and convenience (e.g., touring the U.S. or caring for ill relative) or because they are unable to work (e.g., maternity leave or automobile accident which temporarily incapacitates the nonimmigrant) due to a reason which is not directly work related and required by the employer. Of course, the employer would still have to pay the required wage if the employee’s non-productive period was subject to payment under the employer's benefit plan or other statutes.
The H-1B employee (non-productive) must be paid during the COVID-19
If the H-1B employee is not able to work from home during a COVID-19 the employer must continue to offer the required wage given that the conditions are not created by the employee. Otherwise, an employer could be exposed to liability such as fines, back wage obligations, and in serious cases debarment from the Department of Labor (DOL) temporary and permanent immigration programs for a period of time.
To confirm if an employer need notify the LCA when an employee is working from home, please check the DOL’s Office of Foreign Labor Certification guidance
If the Employee is COVID-19 positive
The regulations do not require an employer to pay the required wage if an employee is not able to work due to a reason which is not directly work related and required by the employer. An employer should be aware of any contract policies, employer's benefit plan or other statutes such as the Family and Medical Leave Act, Americans with Disabilities Act, or any additional federal legislation passed regarding employers’ obligations during this national emergency required the employer to provide a payment.
Converting an H-1B employee from full-time to part-time status
An employer seeking to convert a full-time H-1B employee to part-time must file a new LCA to reflect this change. Once a new LCA is required, the employer is required to file an amendedH-1B petition. The employee is permitted to commence part-time employment upon the receipt of the H-1B petition by the United States Citizenship and Immigration Services (USCIS).
Termination of the H-1B employee
If the employer decides to terminate the obligation to pay the required wage he needs to notify USCIS that the employment relationship has been terminated so that the petition is canceled. The employer then needs to provide the employee with payment for transportation home under certain circumstances. Additionally, an employer is responsible for paying for the return transportation cost of the employee if the employer terminates the employee prior to the end of the petition period.
It is important to remember that an employee may be able to avail themselves of the shorter of a 60-day grace period or the remainder of the approved petition duration to seek to change employer, change status, and extend stay in the United States.
Please don’t hesitate to reach out if you have any immigration related questions or concerns, as we are happy to provide free initial consultations.
The Law Office of Nicholas J. Mireles, APC is an experienced Los Angeles based U.S. Immigration law firm that has been practicing immigration law since 2013. Our background makes us uniquely well suited to help you with any type of issue relating to your immigration status.
Law Office of Nicholas J. Mireles, APC
411 West 7th St. Ste 310 - Los Angeles, CA 90014