The spread of COVID-19 is taking the world by storm with unprecedented and far-ranging consequences. During this extraordinary time, many employers are dealing with difficult issues regarding their workforces amidst office closures, shelter-in-place orders and other disruptions. Below we provide general guidance to common questions and scenarios with respect to workers in H-1B status during this challenging time, although particular cases will require an individualized assessment.

1.    Can an H-1B worker be furloughed or placed in other unpaid leave status?

No, an H-1B worker generally may not be furloughed or placed in an involuntary unpaid leave status, including for reasons related to COVID-19. Department of Labor (DOL) regulations require employers to continue to pay the wage set forth in the certified Labor Condition Application (LCA) for all nonproductive time caused by conditions related to employment, which includes a lack of assigned work, irrespective of the fact that the employer may not be paying similarly situated U.S. workers. No payment is required under the H-1B program for nonproductive time due to reasons unrelated to employment, such as at the employee’s voluntary request and for the employee’s convenience. Employers who place H-1B workers in furlough or involuntary unpaid leave status could be exposed to liability such as fines, back wages and other penalties. An employer may end its obligation to pay the required wage to an H-1B worker in nonproductive status by effectuating a bona fide termination of the employment relationship.

2.    Can an H-1B worker work remotely from home?

Yes, but depending on the circumstances, the employer may need to take additional steps to ensure compliance with H-1B requirements, such as posting new LCA notices or filing an amended H-1B petition. DOL regulations provide that an employer does not need to file a new LCA when it moves an employee within the same “area of intended employment,” which is also defined as “normal commuting distance.” Assuming that the H-1B worker’s home is within normal commuting distance of his or her usual worksite, a new LCA is not required. When a new LCA is not required, an amended H-1B petition is also not required.

Even when a new LCA and an amended H-1B petition are not required, the employer may need to comply with the LCA posting requirement if the H-1B worker will work from home for longer than 30 days.

H-1B workers who work remotely from a location that is not within the same area of intended employment as their usual worksite may require the filing of a new LCA and an amended H-1B, depending on the length of time they work from the new location and other factors.

3.    Can an H-1B worker’s hours be reduced from full- to part-time?

U.S. employers are required to notify USCIS if there has been a material change in the terms and conditions of the H-1B worker’s employment. A reduction in hours and corresponding reduction in pay is a material change requiring the filing of a new LCA and an amended H-1B petition. A failure to obtain a new LCA and file an amended H-1B petition with USCIS would put the employer at risk of fines, back wages and other penalties.

4.    Can an H-1B worker be temporarily laid off?

No. In order to end its wage requirements under the LCA, the employer must effectuate a bona fide termination, including notifying USCIS of the termination (which results in the revocation of the approved H-1B petition) and paying the employee’s reasonable costs of return transportation home if the termination occurs prior to the end of the approved petition period. A terminated H-1B worker typically has a grace period in which to depart the United States, file to change status or extend status through sponsorship by a new employer. Re-hiring the employee in the future will require the filing of a new H-1B petition.

These are just some of the issues an employer will need to consider before making changes impacting the employment of foreign national employees in H-1B status. If you need any guidance or support during this challenging time, please do not hesitate to reach out to us.

This alert was written by Sufen Zhang and Zachary Haugen, lawyers in the Labor, Employment, Benefits & Immigration practice group at Miles & Stockbridge.

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