Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Note: Because the COVID-19 situation is dynamic, with new governmental measures each day, employers should consult with counsel for the latest developments and updated guidance on this topic.
As many employers see shifts in business practices to allow teleworking to facilitate continued employee safety during the COVID-19 outbreak, employers of nonimmigrant workers should be mindful of needed steps for continued compliance with the regulations governing nonimmigrant employment. As of the date of publication, the U.S. Citizenship and Immigration Services (USCIS) has not addressed any changes to compliance requirements. Additionally, employers should be aware of how to facilitate H-1B workers facing new work-from-home needs.
Posting and Notice Requirements
It is important for employers to understand implications of remote-work policies in relation to the guidelines in place for posting notices of hiring of new H-1B employees.1 The Department of Labor’s longstanding notification requirement aims to protect U.S. workers by informing them of the nonimmigrant or immigrant worker’s terms of employment, including the wage offered and the right of the U.S. worker to examine documents justifying the wage, as well as informing U.S. workers of their ability to file complaints if they believe violations have occurred.
H-1B regulations2 require that employers provide notice of H-1B hiring either through a hard-copy posting at the actual worksite(s) where the H-1B worker will be employed, or through electronic notice (which may be posted on the company’s intranet or in its newsletter, or failing that, via direct e-mail to affected employees).The DOL Wage and Hour Division’s Field Assistance Bulletin (March 15, 2019) has also clarified that use of a “public website” is permissible insofar as “all affected workers, including those employed by a third party, have access to, and are aware of, the electronic notification.” The DOL generally uses a good-faith compliance standard for enforcement of the labor condition application (LCA) regulations.3 As such, employers may want to consider providing electronic notice to affected employees when the majority of the workforce is working remotely.
Remote Work for H-1B Workers
Employers should also be mindful that the regulations require that employers afford H-1B workers with working conditions “on the same basis and in accordance with the same criteria as it affords to its U.S. worker employees.”4 Working conditions include “matters such as hours, shifts, vacation periods, and benefits such as seniority-based preferences for training programs and work schedules.” Thus, if employers allow U.S. workers to work from home, the option should similarly be provided to all H-1B workers.
Remote working arrangements can pose questions for how to comply with the terms of the approved LCA underlying the H-1B visa. Generally, the regulations governing LCAs do not place any restriction on H-1B worksite location or prohibit a work location at a personal residence. If an H-1B employee plans to work from home throughout the proposed employment period, regulations require that the LCA notice be posted at the actual worksite – in this case, the employee’s residence.5 If the employee plans to work both from employer’s office and their personal residence, the LCA notices should be posted at each planned worksite location (including the personal residence). Thereafter, notices should be placed in an employee’s Public Access File.
One of the most pressing concerns for H-1B employers is how to handle employees working on visas supported by LCAs that do not reference the home worksite. These LCAs may have been filed at a time when only the in-office worksite location was contemplated. In such cases, USCIS guidance provides positive news for many employers: If a petitioner’s H-1B employee is simply moving to a new job location within the same area of intended employment, a new LCA is not generally required.6 Therefore, provided there are no changes in the terms and conditions of employment that may affect eligibility for H-1B classification, the petitioner does not need to file an amended or new H-1B petition. However, the petitioner must still post the original LCA in the new work location within the same area of intended employment.
Generally, the regulations define “area of intended employment as “the area within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be employed.”7 There is no rigid measure of distance that constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas—e.g., normal commuting distances might be 20, 30, or 50 miles. For LCAs filed with an “area of intended employment” falling within a given Metropolitan Statistical Area, the guidelines are more straightforward. Specifically, “[i]f the place of employment is within a Metropolitan Statistical Area (MSA) or a Primary Metropolitan Statistical Area (PMSA), any place within the MSA or PMSA is deemed to be within normal commuting distance of the place of employment . . .”8 Thus, if an H-1B employee’s personal residence is located within the same MSA as the normal in-office worksite location, a new LCA approval is not needed for working from home, nor is an amended H-1B filing. Employers can look up an MSA at various websites online: the official government website is: https://www.huduser.gov/portal/datasets/geotools.html or you may contact your legal counsel for assistance.
In accordance with USCIS guidance, LCA notices should still be posted at the new worksite location (i.e., the employee’s personal residence) for 10 consecutive business days (even though a new LCA is not required). Thereafter, the notices should be placed in the employee’s Public Access File. In 2017, the Wage and Hour Division commented in a meeting with the American Immigration Lawyers Association that it would not enforce the posting requirement at a personal residence.9 As these comments are not binding, it is recommended to post the notice at the residence for employees working at a personal residence in the same MSA as the worksite referenced in the approved LCA.
30-Day Short-Term Placement for Employees Working at Homes Outside of Approved MSA in LCA
How should employers treat employees whose homes are located outside the MSA in which the primary office worksite is located? In this case, the “short-term placement” option in the LCA regulations (20 C.F.R. § 655.735) can provide some relief for employers. This provision permits placement of H-1B workers at any worksites (even those not listed in the approved LCA) for up to 30 workdays per year. “Workday” means “any day on which an H-1B nonimmigrant performs any work at any worksite(s) within the area of short-term placement or assignment.”10 These “workdays” do not include weekends or holidays and could thus cover affected employees for up to six typical workweeks. However, if some days have already been used by the employee for this option, then employers are not able to use the entire 30-day allowance.
Employers should also bear in mind that “short-term placement” regulations do require the employer to (i) continue to pay such worker(s) the required wage (based on the prevailing wage at such worker’s(s’) permanent worksite, or the employer’s actual wage, whichever is higher); (ii) pay for “actual cost of lodging (for both workdays and non-workdays)” and (iii) pay for “the actual cost of travel, meals, and incidental expense (for both workdays and non-work days).”11 These provisions have not been defined by USCIS or the DOL in terms of whether they would trigger a traditional wage and hour analysis, encompassing actual costs associated with working out of one’s personal residence (i.e., cost of upgrading a WiFi network to support work activities), but employers should be aware of this possibility.
60-Day Rule for Placement at Alternative Location (Not to Include U.S. Residence)
Additionally, based on the regulations,12 a worker may be permitted to be placed at an off-site work location for up to 60 days in a one-year period. However, special caveats apply. First, the H-1B employee must continue to maintain an office or work station at their permanent worksite (e.g., the worker has a dedicated workstation and telephone line(s) at the permanent worksite). Second, the H-1B employee must spend “a substantial amount of time at the permanent worksite in a one-year period.” Finally, the H-1B employee’s U.S. residence or place of abode must be located in the area of the permanent worksite and not in the area of the short-term worksite.
Unfortunately, the final requirement will preclude this option for workers who do not reside in the same MSA, requiring employers to obtain a new LCA for an employee whose residence is outside of the MSA if more than 30 workdays have passed. The need to file a new LCA will trigger the need to file a new H-1B petition. Theoretically, this provision may be applicable to an employee working out of an alternative worksite (not listed on LCA) who does maintain a personal residence in the area of the permanent worksite. The location of a “personal residence” is a determination made based on the worker's personal mailing address; the worker's lease for an apartment or other home; the worker's bank accounts; the worker's automobile driver's license; and the residence of the worker's dependents.13
Currently, USCIS has not suspended any requirements that employers file an amended or new H-1B petition when a new LCA is required due to a change in the H-1B worker’s place of employment (to a location outside of the approved LCA) based on COVID-19 outbreak-related workplace changes. Generally, for an H-1B employee whose personal residence is outside of the MSA, before the H-1B employee’s short-term placement has reached the workday limit, the employer must either (1) file an LCA and obtain ETA certification and thereafter place the H-1B employee in that occupational classification at the worksite in that area pursuant to approved LCA or (2) immediately terminate the placement of an H-1B employee who reaches the workday limit in an area of employment. As noted above, an amended H-1B petition is required if the employer needs to file a new LCA and this should be done prior to reaching the 30-day limit.14
What is the Effect of Non-Productive Time Off Due to Illness?
The COVID-19 outbreak also brings new employer questions regarding how to treat non-productive time off for a sick H-1B employee or family member of an H-1B employee. Periods of time in which H-1B employees are not working can sometimes raise concern for employers because the regulations require that employers pay H-1B employees in non-productive status. The key question to ask in this situation: Was non-productive status due to a decision by the employer?
Specifically, the Immigration and Nationality Act (INA) requires that H-1B holders be paid the wages promised to them and required under the INA in accordance with the “no-benching” H-1B provisions.15 If an H-1B employee is rendered inactive due to a decision attributable to the employer (which includes lack of work assignments), the employer is still bound by the LCA and obligated to pay the H-1B worker the required wage even if the employee is not performing work during that period of time.16
Still, an employer may be excused from wage obligations in some cases. Specifically, the regulations allow that if an H-1B nonimmigrant “experiences a period of nonproductive status due to conditions unrelated to employment, which take the nonimmigrant away from his/her duties at his/her voluntary request and convenience (e.g., touring the U.S., caring for ill relative) or render the nonimmigrant unable to work (e.g., maternity leave, automobile accident which temporarily incapacitates the nonimmigrant), then the employer shall not be obligated to pay the required wage rate during that period,” provided that these periods of non-productivity are not subject to payment under the employer’s benefit plan or other statutes, such as the Family and Medical Leave Act (FMLA) or the Americans with Disability Act (ADA).17
Under the regulatory definition, a nonimmigrant’s request for personal time off due to an inability to work due to an illness or caring for a sick relative (or for other reasons related to one’s request and convenience) would generally not require payment for associated nonproductive time, insofar as periods of non-productivity are not subject to payment under employer-specific benefit plans, FMLA, the ADA, or other applicable statutory guidelines.
Reduced Work Schedules or Reduced Pay for H-1B Employees
Generally, employers can reduce salaries if the employee is subject to an LCA in which the wage offer was expressed as a range, and the employee’s reduced salary remains within that range and is higher than the prevailing wage.18
A reduction in hours for full-time employees may be permissible in some cases. Although there is no regulatory definition for full-time employment for the H-1B, H-1B1, and E-3 programs, the DOL generally considers 35 hours per week or more to be full-time.19 Employees will still be considered to be employed on a full-time basis (in accordance with the terms of their LCAs), provided that employees’ work schedules are not reduced below 35 hours per week.20 If the H-1B worker is certified for “full-time employment” with an hourly rate on the LCA, the employer is required to pay the hourly wage to the worker for a full-time week (40 hours, unless the employer can demonstrate that a different number of hours constitutes full-time employment), except for a period of non-productive status due to conditions unrelated to employment or which render the worker unable to work.21
For part-time employees, if the Form I-129, Petition for Nonimmigrant Worker (the H-1B petition filed with USCIS and supported by an LCA), specifies a range of hours for part-time employment, “the employer is required to pay the worker at least the average number of hours normally worked, provided the average is within the range indicated.” The worker “should not be paid for fewer than the minimum number of hours indicated for the range of part-time employment.” Changes below these levels may require a new LCA and a new H-1B petition. In all cases, the H-1B nonimmigrant must be paid the required wage for all hours performing work within the meaning of the Fair Labor Standards Act.
To conclude, if a worksite quarantine is expected to last more than 30 workdays and the employee’s home is located outside of the MSA of the work location listed on the approved LCA, filing a new amended LCA and H-1B petition to cover the employee’s home residence is required and recommended. Whether the employee’s home is within the MSA or outside of the MSA (which requires a new LCA after 30 days), employers must ensure compliance with the applicable LCA notice posting requirements for actual worksite locations (to include personal residences). Employers should be mindful of requests for voluntary leave on the impact for non-productivity regulations and should consider that reduced schedules and pay is permissible if within the bounds of the approved LCA supporting the worker’s H-1B petition. We continue to monitor new developments and advise that employers be aware that this is a fluid situation with potentially evolving changes in treatment of H-1B employees.
1 See 20 C.F.R. §655.734.
2 20 C.F.R. §655.734(a)(1).
3 See 20 C.F.R. § 655.810(c)(4).
4 20 C.F.R. § 655.732(a)
5 See 20 C.F.R. § 655.715.
6 See USCIS Final Guidance on When to File an Amended or New H-1B Petition After Matter of Simeio Solutions, LLC, PM-602-0120 (July 21, 2015) (citing INA section 212(n)(4), 20 C.F.R. § 655.734).
7 20 C.F.R. § 655.715.
8 See 20 C.F.R. § 655.715.
9 See Minutes from DOL Wage and Hour Division (WHD) Meeting on 10/13/17 posted on AILA’s website (AILA Doc. No. 17111732, Oct. 13, 2017).
10 See 20 C.F.R. § 655.735(d).
11 See 20 CFR § 655.735(b)(3)(ii)-(iii).
12 20 C.F.R. § 655.735.
13 See 20 C.F.R. § 655.735(c)(3).
14 See USCIS Final Guidance on When to File an Amended or New H-1B Petition After Matter of Simeio Solutions, LLC (PM-602-0120) (July 21, 2015).
15 See 20 C.F.R. § 655.731(c)(7)(ii) (“If the H-1B nonimmigrant is not performing work and is in a nonproductive status due to a decision by the employer (e.g., because of lack of assigned work), lack of a permit or license, or any other reason except as specified in paragraph (c)(7)(ii) of this section, the employer is required to pay the salaried employee the full pro-rata amount due, or to pay the hourly-wage employee for a full-time week (40 hours or such other number of hours as the employer can demonstrate to be full-time employment for hourly employees, or the full amount of the weekly salary for salaried employees) at the required wage for the occupation listed on the LCA.”). ”
16 See 20 C.F.R. §655.731(c)(6)(ii).
17 See 20 C.F.R. § 655.731(c)(7)(ii) (emphasis added).
18 See 20 CFR § 655.731(a)(2)(v) (“Where a range of wages is paid by the employer to individuals in an occupational classification or among individuals with similar experience and qualifications for the specific employment in question, a range is considered to meet the prevailing wage requirement so long as the bottom of the wage range is at least the prevailing wage rate.”).
19 See Form ETA-9035CP–General Instructions for the 9035 & 9035E, OMB Control No.: 1205-0310.
20 See U.S. Department of Labor Wage and Hour Division, Fact Sheet #68–What Constitutes a Full-Time Employee Under H-1B Visa Program, (July 2009) (“In no event would less than 35 hours per week be considered to be full-time employment.”).
21 See U.S. Department of Labor Wage and Hour Division, Office of Foreign Labor Certification Frequently Asked Questions, H-1B, H-1B1 and E-3 Programs Round 1 (Feb. 17, 2011).