Please note, the COVID-19 situation is very fluid and the government agencies are issuing new and changing guidance on an almost daily basis. Before taking any actions, please consult with your counsel at FordMurray for the latest developments and updated guidance on this topic.
With many local governments, state governments, and employers instituting mandatory “work at home” policies to facilitate employee safety during the COVID-19 outbreak, employers of nonimmigrant workers must be extra mindful of any additional steps or hurdles to maintain compliance with the immigration regulations.
As of the date of this memo, the U.S. Citizenship and Immigration Services (USCIS) has not addressed any significant changes to compliance requirements. As such, employers under a “work from home” order should consider the following issues for nonimmigrant workers, in particular, those in H-1B status:
Posting and Notice Requirements
All H-1Bs require that the employer provide Notice to all employees that the company is hiring an H-1B worker and that Notice is posted in conspicuous locations where employees can see such Notice. The purpose of this the Department of Labor’s Notice requirement is to protect U.S. workers by providing them with the nonimmigrant worker’s terms of employment, including the wages offered and the right of the U.S. worker to examine documents justifying the wage, as well as informing U.S. workers of their ability to file complaints if they believe any violations have occurred.
When posting this Notice, employer have the option of either a hard-copy posting at the actual worksite(s) where the H-1B worker will be employed, or through electronic notice (which may be posted on the company’s intranet or in its newsletter, or failing that, via direct e-mail to affected employees). See 20 C.F.R. §655.734(a)(1). The DOL Wage and Hour Division’s Field Assistance Bulletin (March 15, 2019) has also clarified that use of a “public website” is permissible insofar as “all affected workers, including those employed by a third party, have access to, and are aware of, the electronic notification.” The DOL generally uses a good-faith compliance standard for enforcement of the labor condition application (LCA) regulations. See 20 C.F.R. § 655.810(c)(4). As such, we recommend that employers provide electronic notice to affected employees when the majority of the workforce is working remotely.
Similarity of Working Conditions
The LCA Regulations further provide that employers must provide H-1B workers with working conditions “on the same basis and in accordance with the same criteria as it affords to its U.S. worker employees.” See 20 C.F.R. § 655.732(a). Working conditions include “matters such as hours, shifts, vacation periods, and benefits such as seniority-based preferences for training programs and work schedules.” Thus, if employers allow U.S. workers to work from home, the option should similarly be provided to all H-1B workers.
So, LCA Regulations provide that similar benefits must be provided, but how does the employer comply with the other components of LCA compliance in a remote working arrangement? It must be noted that generally the regulations governing LCA compliance do not place any restriction on H-1B worksite location or prohibit a work location at a personal residence. If an H-1B employee plans to work from home throughout the proposed employment period, regulations require, as stated in section 1 above, that the LCA notice be posted at the actual worksite – in this case, the employee’s residence. See 20 C.F.R. § 655.715. Once completed, the Notices should be placed in an employee’s Public Access File.
But, what does the employer do in a scenario where the home worksite was not originally listed in the LCA? The guidance from the USCIS in these situations has been very beneficial to employers. If a petitioner’s H-1B employee is simply moving to a new job location within the same area of intended employment, a new LCA is not generally required. See USCIS Final Guidance on When to File an Amended or New H-1B Petition After Matter of Simeio Solutions, LLC, PM-602-0120 (July 21, 2015) (citing INA section 212(n)(4), 20 C.F.R. § 655.734). So, in our scenario above where the employee is only moving from working in the office to working from home (provided there are no other changes in the terms and conditions of employment, i.e., wages), the employer does not need to file an amended or new H-1B petition. However, the employer must still post the original LCA in the new work location within the same area of intended employment, i.e., the employee’s home.
The LCA Regulations define “area of intended employment as “the area within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be employed.” See 20 C.F.R. § 655.715. However, the DOL provides no real guidance on how to measure a distance that constitutes “a normal commuting distance or normal commuting area”, because there may be widely varying factual circumstances among different areas. In NY, a normal commute might be 50 miles where in Portland, Maine, it is only 10 miles. For LCAs filed with an “area of intended employment” falling within a given Metropolitan Statistical Area (MSA), the guidelines are more straightforward. Specifically, “if the place of employment is within a [MSA], any place within the MSA is deemed to be within normal commuting distance of the place of employment….” See 20 C.F.R. § 655.715. Thus, if an H-1B employee’s personal residence is located within the same MSA as the normal in-office worksite location, a new LCA approval is not needed for working from home, nor is an amended H-1B filing. MSAs are available on the government’s website. You may also contact FordMurray for guidance on MSAs. Even if you determine the employee is within the same MSA, LCA Regulations and USCIS guidance require that the employer still post Notice at the employee’s home for 10 consecutive business days (even though a new LCA is not required). Once completed, the Notices should be placed in the employee’s Public Access File. But what if the employee lives outside of the MSA?
30-Day Short-Term Placement
In scenarios where the employee lives outside the MSA in which the primary office worksite is located as listed on the LCA, the Regulations provide for a “short-term placement” option. See 20 C.F.R. § 655.735. This provision permits placement of H-1B workers at any worksites (even those not listed in the approved LCA) for up to 30 workdays per year. “Workday” means “any day on which an H-1B nonimmigrant performs any work at any worksite(s) within the area of short-term placement or assignment.” See 20 C.F.R. § 655.735(d). These “workdays” do not include weekends or holidays and could thus cover affected employees for up to six typical workweeks. Please note, if some days have already been used by the H-1B employee for this option, these days will count against the 30-day allowance.
Second, this option does not remove any other LCA or H-1B obligations of the employer. That is, the employer must continue to pay the H-1B wages listed in the LCA as well as the other obligations imposed upon H-1B employers. See 20 CFR § 655.735(b)(3)(ii)-(iii).
60-Day Rule for Placement at Alternative Location (Does Not Include U.S. Residence)
As further provided in the Regulations, an H-1B worker may be permitted to be placed at an off-site work location for up to 60 workdays in a one-year period. See 20 C.F.R. § 655.735. To qualify, the employer must meet certain criteria. First, the H-1B employee must continue to maintain an office or work station at their permanent worksite. Second, the H-1B employee must spend “a substantial amount of time at the permanent worksite in a one-year period.” Finally, the H-1B employee’s U.S. residence must be located in the area of the permanent worksite and not in the area of the short-term worksite. That is, their home cannot be the short-term worksite under this criterion.
Because of this final provision, this 60-day rule will not be as useful for employers in this current scenario in that, if an H-1B employee lives outside of the permanent worksite MSA and if this “work from home” order goes beyond 30 days, then it becomes highly likely that the employer will have a need to file a new LCA to cover the “new” work location, i.e., the individual’s home. Unfortunately, the need to file a new LCA will trigger the need to file an amended H-1B petition.
It must be noted that as of the date of this memo, the USCIS has not suspended any requirements that employers file an amended or new H-1B petition when a new LCA is required due to a change in the H-1B worker’s place of employment (to a location outside of the MSA on the approved LCA and/or longer than 30-day workdays) even if those changes are based on COVID-19 adjustments and recommendations. As such, and as indicated herein, when an H-1B employee whose personal residence is outside of the MSA and before the H-1B employee’s short-term placement has reached the 30-day workday limit, the employer must either: (1) file an LCA and obtain ETA certification and thereafter file an amended H-1B Petition; or (2) immediately terminate the H-1B employee who reaches the 30-day workday limit. See USCIS Final Guidance on When to File an Amended or New H-1B Petition After Matter of Simeio Solutions, LLC (PM-602-0120) (July 21, 2015).
What are the Implications of an H-1B Employee needing time off due to COVID-19?
With the virus spreading quickly and impacting so many, how do employers treat non-productive time off for a sick H-1B employee or an H-1B employee who must care for a sick family member? Periods of time in which H-1B employees are not working can sometimes raise concern for employers because the regulations require that employers pay H-1B employees even during non-productive status. Generally, the defining point in this scenario is whether the non-productive status was driven by the employee rather than the employer. The Regulations states that if an H-1B nonimmigrant “experiences a period of nonproductive status due to conditions unrelated to employment, which take the nonimmigrant away from his/her duties at his/her voluntary request and convenience (e.g., caring for ill relative) or render the nonimmigrant unable to work (e.g., maternity leave, illness which temporarily incapacitated the H-1B employee), then the employer shall not be obligated to pay the required wage rate during that period,” provided that these periods of non-productivity are not subject to payment under the employer’s benefit plan or other statutes, such as the Family and Medical Leave Act (FMLA) or the Americans with Disability Act (ADA). See 20 C.F.R. § 655.731(c)(7)(ii). As such, should the employee qualify for sick-leave under emergency COVID-19 provisions or other mandated provisions, then that leave would be allowed under the H-1B employment. The employer would make note of the allowed leave in the H-1B employee’s Public Access File.
What if an Employer Temporarily Shuts Down Operations in response to COVID-19?
As of the date of this memo, the USCIS has not made any changes to the “anti-benching” provisions in the Regulations as a result of the COVID-19 outbreak. The anti-benching provisions require that an H-1B employee be paid the wages entitled to them and required by the LCA. See 20 C.F.R. § 655.731(c)(7)(ii) (“If the H-1B nonimmigrant is not performing work and is in a nonproductive status due to a decision by the employer (e.g., because of lack of assigned work), lack of a permit or license, or any other reason except as specified in paragraph (c)(7)(ii) of this section, the employer is required to pay the salaried employee the full pro-rata amount due, or to pay the hourly-wage employee for a full-time week (40 hours or such other number of hours as the employer can demonstrate to be full-time employment for hourly employees, or the full amount of the weekly salary for salaried employees) at the required wage for the occupation listed on the LCA.”).” Under these provisions, an H-1B employee that is required by an employer to stop working, the employer is still bound by the LCA and obligated to pay the H-1B worker the required wage. See 20 C.F.R. §655.731(c)(6)(ii).
Notwithstanding, an employer may be excused from wage obligations in some instances. First, an employer may reduce the salary of an H-1B employee if the underlying H-1B Petition governing that employment was subject to an LCA in which the wage offer was expressed as a pay range and the employee’s reduced salary remains within that range and is higher than the prevailing wage. See 20 CFR § 655.731(a)(2)(v) (“Where a range of wages is paid by the employer to individuals in an occupational classification or among individuals with similar experience and qualifications for the specific employment in question, a range is considered to meet the prevailing wage requirement so long as the bottom of the wage range is at least the prevailing wage rate.”)
Second, a reduction in hours for full-time employees may also be permissible. Although there is no regulatory definition for full-time employment for the H-1B, the DOL generally in most other circumstances considers at least 35 hours per week to be full-time. Therefore, H-1B employees would still be considered full-time employment (in accordance with the terms of their LCAs), provided that such work schedules are not reduced below 35 hours per week. See U.S. Department of Labor Wage and Hour Division, Fact Sheet #68–What Constitutes a Full-Time Employee Under H-1B Visa Program, (July 2009) (“In no event would less than 35 hours per week be considered to be full-time employment.”). Please note, that if the H-1B worker has an LCA indicating “full-time employment” with an hourly rate on the LCA, the employer is required to pay the hourly wage to the worker for a full-time week (which has been determined to be 40 hours, unless the employer can demonstrate that a different number of hours constitutes full-time employment), except for a period of non-productive status due to conditions unrelated to employment or which render the worker unable to work. See U.S. Department of Labor Wage and Hour Division, Office of Foreign Labor Certification Frequently Asked Questions, H-1B, H-1B1 and E-3 Programs Round 1 (Feb. 17, 2011). In this latter LCA scenario, we believe that the current COVID-19 situation would be considered a “condition unrelated to employment and rendering the worker unable to work.”
Contrast the above with the third scenario, which covers part-time H-1B workers whose H-1B petition and LCA specifies a range of hours where “the employer is required to pay the worker at least the average number of hours normally worked, provided the average is within the range indicated.” The worker “should not be paid for fewer than the minimum number of hours indicated for the range of part-time employment.” Changes below these levels may require a new LCA and a new H-1B petition.
If you are an employer currently on a mandated quarantine, either by local, municipal, or State-imposed restrictions, you must take heed of these precautions for your nonimmigrant workforce as they may have additional steps to be taken to ensure compliance with Immigration Regulations. As a reminder, if the quarantine is expected to last more than 30 workdays, additional inquiries are to be made. For instance, if the employee lives outside of the MSA in which she works on the LCA, the employer is likely going to be required to file an amended H-1B.
Additionally, employers should be mindful of H-1B employee requests for voluntary leave on the impact for non-productivity regulations. Finally, with many employers moving to reduced schedules and/or pay during the quarantine, remember that such reductions are only allowed if within the bounds of the approved LCA supporting the worker’s H-1B petition. Otherwise, an amended H-1B is likely necessary to cover this period.
FordMurray continues to monitor any new developments and/or guidance provided by the DOL or USCIS with regard to this situation. We recommend that employers constantly monitor our blog for updates as this is a very fluid situation with potential changes in treatment of H-1B employees happening quickly.