The current COVID-19 health crisis is impacting companies and individuals around the world and presents unique challenges for human resource professionals when it comes to employing temporary foreign workers in the United States. Employers must also be concerned to ensure their employees maintain work authorization pursuant to the rules of the Department of Labor and extend such work authorization. We, at Emandi Law Firm outline, what H1-B employers should keep in mind, as they tackle human resource matters during the time of the pandemic

Implement a work-from-home policy for your H1-B employees:

• H1B employees can work from home as long as their duties remain substantially the same as that which was reported on the H1B petition, and as long as they continue to receive the same pay for the same number of hours per week as they normally receive. Additionally, H1B workers can change to work at home if they live within normal commuting distance (about 50 miles) from their normal worksite noted as the same MSA (metropolitan statistical area).

• However, if there are material changes to an H1B employee’s duties, wages, or hours per week, or if the employee’s home is more than 50 miles from their normal worksite, the employer must file a new Labor Condition Application (Form 9035) with the Department of Labor, and an amended H1B Form I-129 petition with USCIS.

• If the employer is filing a new Labor Condition Application for an H1B employee whose home is outside the normal commuting distance of 50 miles, they may find that the new worksite is in an area with a higher prevailing wage than the normal worksite. In this case, the employer must be ready to pay the new prevailing wage to this employee upon approval of the amended H1B petition.

• The filing of a new Labor Condition Application comes with certain posting requirements which the employer will need to continue to meet and as per the new guideline related to posting under the pandemic, the employer has 30 days to complete the posting.

Temporarily Layoff the H1B workers:

• A temporary layoff for most employees means the suspension of work without pay. The employer may need to rely on a temporary layoff in order to get through these uncertain times. But for H1-B employees, a layoff cannot include the suspension of pay. According to the terms of the Labor Condition Application filed with the employee’s H-1B petition, the employer must fully compensate its H1B employees, even during “nonproductive” times that are imposed by the employer. Note, however, that if the employee initiates a period of nonproductive time, to take care of an ill family member, for example, and the employer has not mandated such a break from employment, then the employee’s pay can be suspended (not including any pre-existing paid time off agreement).

• If the company needs to lay off some or all of its employees for a period of time, keep in mind that for an H1B employee, a layoff is a termination. If that individual is not working under the terms of the Labor Condition Application and H1B petition, then he or she cannot remain in H1B status. In this case, the employer would need to conduct a bona fide termination of this employee, including documenting the circumstances surrounding the termination, providing written notice to the employee, and, under the terms of the H1B, offering to pay the reasonable costs of travel for that employee to return to his or her last country of residence abroad.

Additionally, the employer may want to file a request to withdraw the H1B petition for that employee and withdraw the Labor Condition Application associated with that petition. Most employers give these H1B employees time to find new employment before filing to withdraw the petition, although not required. Luckily, employees can avail themselves of a sixty-day grace period in which to seek a new employer. Of course, this is a challenging feat itself under the current economic strain and if the employee cannot find a new employer, he/she faces the issue of not being able to travel as many countries have halted international travel into their borders.

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