H-1B Visas & Legal Issues During COVID-19
A foreign national with an H-1B visa must meet certain requirements to keep their status active. Changes to many U.S. workplaces during the coronavirus pandemic can complicate their situation. For example, stay-at-home orders across most states require employees of non-essential businesses to work from home. An H-1B visa holder who normally works at the office of an employer can work from a home within commuting distance of the office if they post a Labor Condition Application notice at their home work space. (The employer can provide this notice and instructions.) By contrast, an H-1B visa holder who does not live within commuting distance of the office may need to ask their employer to file an amended H-1B petition that lists their home as their place of work if they will be working remotely for more than 60 days.
Changing Hours or Job Duties
The economic downturn has caused some U.S. employers to reduce the hours of their employees or move employees into new positions. If a foreign national with an H-1B visa starts working fewer hours than the hours stated on their H-1B petition, their employer may need to inform USCIS of this reduction. The employer also may need to update USCIS on any change to the employee’s pay.
If an employee changes their position, the employer will need to update USCIS if the change is material. A new job in the same department of the company, or a job that requires essentially the same skills as the previous job, likely would not require a notification. By contrast, a job with completely different duties probably would require a notification. An employer may want to consult an attorney for advice on a specific situation.
The administration of President Joseph Biden issued a memorandum on January 20, 2021, asking executive departments and agencies to review and postpone all published rules that had not yet taken effect and withdraw all unpublished rules. This affects the Department of Homeland Security’s rules on H-1B visa wage requirements and the definition of an employer-employee relationship.
Furloughs and Terminations
If an employer of an H-1B worker initiates a furlough, the employer must continue to pay the H-1B employee’s wages as provided by the H-1B petition. On the other hand, if an H-1B employee refuses to work due to concerns surrounding the coronavirus, the employer does not need to pay the employee’s wages while they are not working. If an employer closes involuntarily due to a government order, it is not clear whether they need to continue paying the H-1B employee. The employer and the employee may want to work out a mutually acceptable arrangement to avoid a dispute.
Unfortunately, layoffs and terminations have become widespread due to the economic pressures caused by the COVID-19 pandemic. If an employer terminates an H-1B employee, the employer must inform USCIS and offer to pay for the employee’s transportation to their previous country of residence. The employer must continue paying the H-1B employee as provided by the H-1B petition until it officially asks USCIS to revoke the petition.
If a terminated H-1B employee wants to remain in the U.S., they have a grace period of 60 days in which to submit an H-1B petition from a new employer or transition to a different status. However, USCIS may deny an application that is submitted before the 60-day period expires if it finds that the H-1B employee did not make an adequate effort to keep their status active. If the H-1B employee finds a new employer, they should expect to start working for that employer while the petition is pending. Since USCIS has suspended premium processing due to the COVID-19 outbreak, an H-1B employee and their new employer will not know for several months whether USCIS approves the new petition. If USCIS does not approve the new petition, the H-1B employee would need to stop working and probably would need to leave the U.S.
