Preventative measures enacted by state governments against the spread of COVID-19 may raise issues for employers that sponsor foreign nationals in non-immigrant (temporary) employment-based visa categories. Specifically, orders restricting workplace operations have led to more employees working from home and a slow-down in business has employers considering cuts to employees’ working hours and wages.
Employers that sponsor foreign nationals in H-1B status should not make material changes to a sponsored foreign national’s employment without filing an amended petition. Material changes that necessitate filing an amended petition include a change in work location outside the area of intended employment (if such location does not constitute a short-term worksite as defined in the regulations) and a change from full-time to part-time employment.
If a sponsored foreign national is assigned to a new work location within the area of intended employment, such a change does not necessitate the filing of an amended petition. However, an employer must post the required notice of the filing of a Labor Condition Application for the area of intended employment by the date the sponsored foreign national begins work at that location.
Additionally, employers that sponsor foreign nationals in H-1B status should not pay a sponsored foreign national less than the required wage for the employment. While employers can file amended petitions for a change in hours or duties, it must always pay the required wage for the employment. The required wage is the higher of the wage the employer normally pays to similarly situated employees at the worksite and the prevailing wage in the area of intended employment. The required wage is the higher of the wage the actual wage, employer pays to all other individuals with similar experience and qualifications for the specific employment, and the prevailing wage in the area of intended employment. Pay cuts may be problematic, and furloughs without pay are in conflict with prohibitions on benching H-1B workers. Employers that lay off sponsored foreign nationals prior to the end of the period of authorized admission must withdraw their petition with USCIS, and are liable for the reasonable costs of the sponsored foreign national’s return transportation abroad. Sponsored foreign nationals will have up to 60 days to leave the U.S. or obtain new sponsorship.
Employers that sponsor foreign nationals in the E-1/2, L-1, O-1 and TN visa categories are afforded greater flexibility concerning these individuals. Such visa classifications are not location-specific. Therefore, in most cases, a change in worksite location would not necessitate an amended petition, but such determinations should be made on a case-by-case basis. Furthermore, although it is safest for such sponsored individuals to work continuously pursuant to their authorized status, in the event of an unpaid furlough, such individuals may continue to maintain their status (pursuant to a 60-day grace period afforded to these sponsored foreign nationals once per authorized validity period). Sponsored foreign nationals in these visa categories who are laid off prior to the end of the period of authorized admission will have up to 60 days to leave the U.S. or obtain new sponsorship, provided they have not already used the 60-day grace period during the authorized validity period.
Please visit our COVID-19 Toolkit for all of Taft’s updates on the coronavirus.