What H-1B Employers and Employees Must Know About Remote Work Due to Coronavirus/COVID-19

Many employers have responded to the COVID-19 pandemic by adopting on-the-fly remote work policies, canceling conferences, limiting travel, and recommending 14-day quarantines for people with suspected exposure.

U.S. businesses sponsoring foreign workers in pursuant to current immigration laws are making tough decisions in the hope that federal authorities will acknowledge the employers’ action was taken in good faith.

Employers of foreign nationals will need to take additional steps to ensure continued compliance with the employee’s visa classification to preserve their employment authorization, immigration status and eligibility for green card benefits. The timely submission of an application or petition for an extension of nonimmigrant status before the current status expires is imperative to maintaining lawful status. 

However, if the extension request is filed beyond the time limitations due to extenuating circumstances, such as COVID-19, an explanation may be provided as to why the restoration of status should still be granted based on “extraordinary circumstances” under 8 CFR § 214.1(c)(4). The filing for adjustment of status must explain why a lapse in status should not deprive the individual of eligibility to receive a green card under the forgiveness clauses (no fault of the individual or technical reasons) of INA § 245(c)(2) implementing USCIS regulation, 8 CFR § 245.1(d)(2).

Maintaining H-1B status and LCA Compliance for Remote Work.

In the wake of COVID-19, there are compliance hurdles for businesses employing H-1B workers if the employee must change the location of where they provide services. Employers need to be particularly mindful of the certified Labor Condition Application (LCA), which covers a specific geographical area that was approved by USCIS as part of granting H-1B status. 

Typically, a change in an H-1B employee’s work location requires a new LCA certification and an amended or new H-1B visa petition to be filed. 

Exceptions: Within-Commuting-Distance and Short-Term Placements

There is a silver lining. If the employee’s new work location (their home) is within normal commuting distance, considered to be within 50 miles or in the same metropolitan statistical area as the approved work location, there is no need for a new LCA or a new/amended H-1B petition.

The distance between the permanent office location and the employee’s residence should be documented to prove that the normal-commuting-distance exception applies.

Alternatively, H-1B workers can be placed at short-term worksites without needing to obtain a new LCA and subsequently file a new/amended H-1B petition. The DOL describes “short-term placements” as locational changes away from the principle worksite. 

Employers may temporarily place H-1B workers in different locations for 30 days per year. The placement can be extended to 60 days if the employee maintains a “US residence or place of abode [which] is located in the area of the permanent worksite and not in the area of the short-term worksite(s).”

For the short-term placement rule to be applicable, the new worksite destination has to be one where the employer does not already have a pre-existing LCA for the same “occupational classification” that the employee currently holds. The short-term placement rule could at least provide temporary relief while plans for the future are worked out.

H-1B Location Change Takeaway

Employers should first decide whether the place where the employee will render services is eligible for either the “within-commuting-distance” exception or can function as a short-term placement. In either case, a new LCA will not be required.

If neither exception applies, it will be a new worksite location and require a newly certified LCA, a new public-notice posting, and a new or amended H-1B petition to be submitted to USCIS before the change in work location takes place.

The employer must repeat the process if the worksite changes again. Meaning a new LCA and new or amended petition must be filed, even if USCIS has not yet decided and approved the first locational change.

Simply put, if an employer changes the physical location of where an H-1B worker renders services in response to COVID-19, then employers and their immigration counsel need to determine if the locational change requires further action. Carefully review the DOL regulations and the USCIS policy memorandum on when new or amended petitions are required.

Required H-1B Wage Payment Obligations 

Should an employer respond to COVID-19 with an unpaid work furlough for all workers, they still have an obligation to pay H-1B employees the wage listed in the LCA per INA and DOL regulations.

Additionally, employers are required to comply with applicable laws such as the Family and Medical Leave Act, even when their duty to pay does not extend to an H-1B worker’s voluntary absence from work or hospitalization.

Terminating an H-1B Employee

In the unfortunate event that an employer has to terminate an H-1B worker (as a result of COVID-19 or otherwise) before the period of the individual’s approved authorized status expires, the termination has to be “bona fide.” 

According to the DOL, a bona fide termination is made by notifying both the employee and USICS, in writing, that the employment relationship has ended. The notification must also disclose that arrangements have been made to cover the cost of return transportation to the worker’s country of citizenship or permanent residence.

If the termination is not bona fide, then the employer may be obligated to pay back wages and arrange return transportation until a bona fide termination occurs.  However, if the H-1B worker finds new H-1B employment within the 60-day grace period, the employer’s duty to pay could end.

We recommend that employers and employees consult with OnlineVisas to discuss any such changes and the ensuing impacts on foreign-national employees.