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Furloughs and H-1B Workers and Employers | Chicago Immigration Attorney Mario Godoy

Furloughs and H-1B Workers and Employers

Many companies that employ nonimmigrant workers are on reduced hours or furloughed to slow the spread of the coronavirus (COVID-19) and reduce costs. Employers who face changing legal obligations in multiple areas of labor and employment law. The U.S. Department of Labor (DOL) released a FAQs Sheet on March 20, 2020, listing exceptions and guidelines for H-1B and E-3 workers who can’t work due to COVID-19, but may work in another location including from home or have reduced hours.

DOL regulations require employers to comply with the labor conditions (Labor Condition Application – LCA) to which they agreed when filing the H-1B petition. However, the COVID-19 situation is unique, and employers should seek guidance from an experienced immigration employment attorney on how to handle specific situations.

Changes in Work Conditions Impacting H-1B Workers During the COVID-19 Outbreak

Source: AILA Doc. No. 20032631

1. Employers Must Pay The Required Wage
Employers of H-1B and E-3 workers have prevailing wage requirements that remain in place according to DOL regulations. The regulations covering the employment of foreign nationals require that H-1B workers be paid their regular wages while in a non-productive status that is the decision of the employer.

An employer is not required to pay the required wage to an employee in non-productive status because they are unable to work due to a reason which is not employer-related.

2. No Benching Rule for H-1B and E-3 Workers
Employers are permitted to terminate nonimmigrant workers during this period provided all legal requirements are met. Temporarily “benching” H-1B or E-3 professionals by placing them in a nonproductive, unpaid status can result in substantial penalties to employers, including back-wage payments, fines, and debarment from the H-1B program.

3. COVID Positive Employees
DOL regulations do not require an employer to pay an H-1B employee who is unable to work. If an employee is quarantined due to COVID test results or symptoms, the employer’s quarantine policy and employee benefit plan, as well as federal policies, must be considered.

4. Converting an H-1B Full-Time Employee to Part-Time 
Under normal conditions, an employer must file a new LCA to change an employee’s status. There is currently a request to waive this condition due to COVID-19.

5. How Does an Employer Cancel Their Obligation to Pay the Required Wage? 
DHS requirements state that payment of the required wage obligation need not be made if there has been a bona fide termination of the employment relationship. Employers are responsible to pay the return transportation cost of the employee if the employer terminates the employee prior to the end of the petition period.

6. What Do Employers Need to Do If An Employee Starts to Work From Home?
DOL guidelines state if an employee is “simply moving to a new job location within the same area of intended employment, a new LCA is not generally required.” If an employee is being moved to a new unintended location short-term no LCA may be required. If the move is unintended and does not fit the DOL “short-term” definition, a new LCA must be filed, “as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite locations.”

Employers of H-1B and E-3 specialty occupation employers should consult an immigration attorney before terminating, furloughing or reducing their hours during the coronavirus national and local emergencies.

At Godoy Law Office with locations in Chicago, Lombard and Oak Brook, Illinois, we work with employers in many fields including health care, technology, startups, sports, business, education and finance to help identify the best way to solve your foreign worker’s needs. We also work directly with foreign nationals who want to live and work in the Chicago area.

If you have a question about business immigration employment in Illinois, contact the immigration attorneys at Godoy Law Office. Call today at 855-554-6369.  

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