Considerations for Companies With H1B Employees During the COVID-19 Pandemic

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.  This includes employees in H1B status or some other temporary status which must be periodically extended in order for the employee to maintain work authorization.  Immigration attorneys across the country have requested guidance from both the U.S. Department of Labor and U.S. Citizenship and Immigration Services during this time, regarding the complications that arise in the hiring of foreign nationals and staying on course with federal compliance regulations in the employment of these temporary workers.  Some initial guidance has been provided from federal agencies, which is certain to be updated over the coming days and weeks.  For now, employers and HR professionals should keep certain points in mind:

Implementing a work-from-home policy

  • Your 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 work from home if they live within normal commuting distance (about 50 miles) from their normal worksite.
  • 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, you 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 you are filing a new Labor Condition Application for an H1B employee whose home is outside the normal commuting distance of 50 miles, you may find that the new worksite is in an area with a higher prevailing wage than the normal worksite. In this case, you 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 you as the employer will need to continue to meet, even if the employee is working from home.

Temporary furloughs or layoffs for H1B workers

  • A temporary furlough for most employees means the suspension of work without pay. Your company may need to rely on a temporary furlough in order to get through these uncertain times.  But for your H1B employees, a furlough cannot include the suspension of pay.  According to the terms of the Labor Condition Application that was filed for each H1B employee, 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 your 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, you 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, you will 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, but this is not required.  These steps are required when any H1B employee separates from the company, and following them can help your company to avoid any future claims of back pay or an incomplete termination process.

Completing Form I-9:

  • Form I-9 is the Employment Eligibility Verification form, controlled by the U.S. Department of Homeland Security, and which is required to be filled out by the employer and any new employee within three days of hire. The document requires the employer, or its agent, to physically inspect the identification and work authorization documents presented by the employee.  However, in order to slow the spread of the COVID-19 virus, public health officials have implemented voluntary, and in some cases, mandatory social distancing measures.  This creates a problem for employers that need to physically inspect a new hire’s documents.
  • On March 20, 2020, the U.S. DHS provided some new flexibility for employers with work-from-home measures in place in response to the virus. Employers with remote operations are permitted to inspect the required documents remotely. Remote verification can include by email, video link, fax, etc.
  • Employers must then re-inspect those documents within three days of when normal business operations resume, and complete the Form I-9 with the notation “COVID-19 – documents physically examined on _______[date]” in the Additional Information field.
  • Another option that employers have is to use an appointed agent to physically inspect an employee’s documents on the employer’s behalf. According to the most recent version of Form I-9 (published on January 31, 2020), the agent can be any person whom the employer designates.  This means that if the employee is working from home, anyone in that home who meets the requirements of an agent can inspect the documents and sign the Form I-9 on behalf of the employer.  You should keep in mind, however, that if there are any errors made in the inspection of these documents, or any kind of violation committed by the agent, the employer may be held liable.

Suspension of routine USCIS services, and the closure of US consulates abroad:

  • On March 18, 2020, USICS announced the closure of all of its field offices in the U.S. until further notice. These offices handle in-person procedures such as green card interviews, naturalization oath ceremonies, InfoPass appointments, and biometric appointments.
  • On March 20, 2020, the U.S. Department of State announced the temporary suspension of all routine visa services at all U.S. Embassies and Consulates around the world, including appointments for nonimmigrant work visas. This means that H1B employees who have an approved petition but have not yet entered the U.S. will be temporarily unable to get the required visa foil in their passports to allow entry to the United States.
  • The USCIS has not announced any current or anticipated changes to the functioning of its five service centers in the U.S., which adjudicate petitions such as those for new H1B employees, or change of status petitions.
  • Two of these service centers process H1B lottery petitions submitted each April. Apart from the suspension of premium (expedited) processing service, there has been no indication from USCIS that there will be any suspension or delay of this year’s lottery process.
  • USCIS remains available for emergency services for limited situations. Employers can contact USCIS Customer Service directly with specific requests for assistance.

 

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Hernandez practices business immigration and employment law in Denver, Colorado, assisting companies around the world in hiring and maintaining foreign talent in the United States.

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