Impact of COVID-19 on H-1B Employees

Employers are facing many employment decisions regarding their workforce amid the COVID-19 crisis. H-1B employees have rules particular to them which employers should bear in mind. This e-alert highlights the issues to consider. However, given the constantly changing landscape, the final course of action depends on a review of the rulings and best practices then in effect.

Furloughs

Generally, H-1B workers cannot be “benched,” meaning they cannot be put in unpaid, unproductive status due to employment-related conditions. Thus, if an H-1B employee is furloughed due to employment circumstances caused by COVID-19, s/he must continue to be paid for that time. Full-time salaried employees must be paid their regular weekly salary. Full-time, hourly employees must be paid for 40 hours of work (or less if they can demonstrate that the lesser amount is considered full-time employment for its hourly employees). NOTE – the US Department of Labor considers 35 hours/week as full-time employment. Part-time workers must be paid at least the number of hours indicated on their H-1B application submitted with the USCIS.

Lay-Offs

If an employer decides to lay-off or terminate an H-1B worker, it must:

Notify the USCIS in writing of the terminate date,
Offer to pay for the worker’s one-way transportation to his/her last place of foreign residence.

If the employer wants to rehire the H-1B worker later, it will have to file an H-1B application with the USCIS, which takes time and money. So, employers should carefully decide whether they want to lay-off versus keeping them on paid leave.

Work from Home

Many employees are working from home for various COVID-19 related reasons. But, in general, an H-1B employee is only allowed to work in the location(s) specified in the H-1B application filed with the USCIS, and a worksite change necessitates an amended H-1B filing with the USCIS. Most likely, an H-1B worker’s home residence was not listed in the initial H-1B paperwork. Luckily, the H-1B rules allow some flexibility here. If the H-1B employee is working in the same metropolitan statistical area (MSA) as the worksite listed in the submitted H-1B paperwork, then s/he can work from home without any additional approvals or filings. To see if the residence is within the MSA, employers can check here, or, as a general rule, they can see if it is within a reasonable commuting distance, the same county, etc. If the residence is outside the MSA listed in the current H-1B paperwork, the H-1B employee can work there for up to 30 workdays per year without the need for an amended H-1B filing. If s/he will be working outside the MSA longer than that, then the best practice is to file an amended H-1B filing with the USCIS. In any case, no matter where the residence is, the employer must post the Labor Condition Application (LCA) at the residence for 10 consecutive business days, and then sign and date that posting and put it in that employee’s public access file.

Unemployment

Unemployment benefits are determined by state agencies. However, generally, an employee must be ready, willing, and able to work to be eligible for benefits. For H-1B workers, the “ability” to work ends when they are laid-off, terminated, or resign. Thus, those laid-off most likely will not qualify for benefits. On the other hand, furloughed H-1B employees are still H-1B employees maintaining status. And, thus, they most likely will qualify for unemployment benefits.

Change to Part-Time

Many employers are facing an economic & business downturn as a result of COVID-19. As a result, they are taking various measures to stay afloat, including converting some full-time workers to part-time. H-1B workers must work the hours specified in H-1B paperwork filed with the USCIS. So, if the employer filed for a full-time position, and now wish to decrease the hours to part-time, an amended H-1B filing should be filed.

Change in Job Duties

When “normal” business operations resume, the employer’s needs may be different. As a result of lay-offs, for example, it may decide to combine and streamline jobs. If an H-1B workers’ job duties materially change (ex: if s/he takes on a newly combined role), an amended H-1B filing is required.

Many factors go into employment decisions and actions. H-1B workers have special considerations, including those described above. Consult immigration counsel to ensure you have considered everything necessary.