COVID-19 & Employer Obligations
The H-1B is one of only a few visa classifications, along with the E-3 and H-1B1, that require the filing of a Labor Condition Application (LCA) as part of the visa approval process. The LCA is submitted to the Department of Labor (DOL) and requires the employer to make certain attestations about the hours worked, job location, and the minimum amount it will pay.
Despite the unprecedented economic impact from COVID-19 and shelter in place orders from various state and local governments, USCIS has not yet relieved employers from their LCA obligations. Visa classifications subject to the LCA requirements must be paid at least the attested amount regardless of furlough or other non-productive periods related to employment.
Employees who request voluntary personal leave for a non-work related reasons, such as an extended holiday or caring for a sick relative, may not need to be paid the required wage. The voluntary leave must not be subject to payment under the employer’s benefit plan or other statutes such as the Family and Medical Leave Act. Voluntary leave should not be imposed as a pretext for the employer’s inability to pay as this could result in DOL sanctions.
In the event LCA subject workers cannot perform their regular job duties due to an employment related decision, the employer may need to file a new LCA and amended petition outlining the revised terms of employment. Changes requiring notification might include moving from full time to part time, changes to job duties, and/or wage rate.
For questions about how changes in job location may impact LCA subject workers during COVID-19, please refer to our earlier update here.
In the event of an involuntary layoff, LCA subject workers also require a “bona fide termination” to stop an employer’s obligations to pay. A bona fide termination is effectuated by notifying the government and the employee of the termination in writing, as well as having the employer offer to pay the employee’s return transportation costs back to their country of origin.
Other visa classifications that do not require an LCA, such as the TN and L-1, do not require employers to notify the government or pay return transportation. Whereas employers of individuals in other categories, like the O-1 and P-1, are obligated to offer return transportation costs despite having no LCA requirement.
Given these many complexities, please contact our office prior to terminating any nonimmigrant workers, so that we can help your company avoid problems down the road, including but not limited to payment of back wages, fines, or incurring a prohibition on hiring foreign labor in the event of a government investigation.
We understand that COVID-19 is requiring employers to adapt to many new and challenging circumstances. Gee & Zhang LLP is here to help your business navigate the intricate immigration issues that may arise as part of your broader workplace changes.