For employees in H-1B, E-3, or H-1B1 status, the worksite location is a material part of the status. If the employee’s home was included as a possible worksite location in the most recent H-1B petition, then there is no specific additional action required. If not, which is likely the case, then working from home constitutes a different worksite location not stated on the previously approved Labor Condition Application (“LCA”), and which can result in non-compliance with the terms of the LCA.
In order to ensure full compliance with the LCA terms and conditions, we are advising our clients to take extra precautions by documenting the change of location for each employee and including it in their Public Access File. As such, we have drafted a template attached to this email, which you can use to document the change of worksite location. If you need help locating the LCA associated with each employee, please let us know and we can share that with you. The notice should be emailed to the employee for review and initialing prior to saving it in his or her Public Access File.
Taking these proactive measures will aid in ensuring you, as the employer, have taken every possible step to continue to be compliant with the H-1B, E-3 and/or H-1B1 terms and requirements as stated in the regulations. We will keep you apprised as new information becomes available.
To summarize, we recommend taking the following steps for each employee in H-1B, E-3, and H-1B1 status: • Complete the attached memo for each employee with information from the current LCA. • Share with the employee for the employee to initial and revert to you. • Sign and save in the Public Access File.
If you are making across-the-board reductions, then you should be aware that the planned for annual salary (or in some cases hourly salary) for foreign national employees in L-1A, L-1B, O-1, TN, H-1B, E-3, and H-1B1 status was indicated on the most recent petition/application. Therefore, it is important to document any reductions from that salary, to ensure that USCIS cannot accuse the company of providing misleading information in the petition/application.
For employees in L-1A, L-1B, O-1, or TN status, we recommend that you document and save the communication about the temporary salary reduction. Beyond that, there is no guidance currently that would indicate that you cannot include these employees in any across the board salary reductions that you are implementing for your entire workforce.
For participants in a J-1 exchange program, Sponsor Organizations are responsible for approving their salary changes, reduction in the hourly work schedule as well as working from the office vs working from home situation. There are many factors that go into approving the changes to the terms of the internship or training program. Before you make any changes to the J-1 applicant’s hourly requirements or pay rate, please contact the Sponsor Organization immediately and they will work with you on a solution. Our understanding so far is that most Sponsor Organizations are encouraging J-1 participants to go back to their home countries.
For employees in H-1B, E-3, or H-1B1 status, the LCA provides a lower limit that you are legally required to pay the employee, which is the prevailing wage amount. Therefore, any reduction below that amount could result in USCIS and/or DOL finding that you have not met your obligations under the LCA. This could result in the employee’s status being revoked, the employee having a cause of action against you to collect the unpaid wages, and possibly fines for the company.
Until we have clear guidance from USCIS or DOL about how the current extraordinary situation will be considered, we cannot provide any firm guidance. However, we do note that for LCAs that list out an annual salary, the obligation is that the employer satisfy that salary by the end of the year. If there is a temporary rate reduction in salary that is compensated for later in the year, that may be sufficient to ensure compliance.
Therefore, no matter what temporary measures you take for now, we recommend that here also you discuss the salary change with the employee, get their full understanding and approval of this change in writing, document the communication about the temporary salary reduction and save that documentation in the Public Access File. Then when the salary reduction period ends, you should communicate that to the foreign national employees and save that communication also in the Public Access File. To be clear, we do not have any guidance yet from DOL or USCIS whether these measures will be sufficient, but are basing this advice on the best information we have from the regulations and the situation.
If you have any further specific questions, please reach out to us directly to let us know so that we can communicate any updated from DOL/USCIS with you, and set up a call as needed.
A change from Full-Time to Part-Time is considered a material change in the nature of employment. Therefore, if you need to make that change for any employee in L-1A, L-1B, O-1, TN, H-1B, E-3, and H-1B1 status, we will likely need to file an Amended Petition with USCIS. The employees can officially be moved to Part-Time once USCIS has received the petition requesting the Amendment. Please contact us directly if this is in your plans, so that we can determine specific timelines, costs, and guidance for you.
The steps to be taken to layoff a foreign national employee are the same as they would be normally for any other worker. You should follow whatever employment-law based steps you would normally take for all workers, including US workers.
For employees in L-1A, L-1B, O-1, H-1B, and H-1B1 status, in addition to whatever employment-law based steps you take, you also should submit a notification of withdrawal of the petition to USCIS within 10 business days of the layoff. For H-1B and H-1B1 employees, you should also withdraw the LCA electronically. Please contact us to let us know about the layoff, and we can complete those steps for you.
For employees in E-3 or TN status, if you filed a petition with USCIS to obtain that status for the employee, then you have the same withdrawal obligations as above. For E-3 and H-1B1 employees who obtained their visas at a US consulate abroad, there will be an LCA to withdraw.
Due to precautions being implemented by employers and employees related to physical proximity associated with COVID-19, the Department of Homeland Security (“DHS”) announced today that it will exercise discretion to defer the physical presence requirements associated with Employment Eligibility Verification (Form I9). Employers will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2.
Please refer to the link below for the specific instructions on how to complete the I-9 form as well as the obligations of the employer and what employers need to do once normal operations are resumed. Failure to comply with these instructions will result in non-compliance with the I-9 regulations. Everything you need to know about the I-9 and how to handle it during and post COVID-19 is in the link below.
“To address the possibility that some aliens impacted by COVID-19 may be hesitant to seek necessary medical treatment or preventive services, USCIS will neither consider testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19 as part of a public charge inadmissibility determination, nor as related to the public benefit condition applicable to certain nonimmigrants seeking an extension of stay or change of status, even if such treatment is provided or paid for by one or more public benefits, as defined in the rule (e.g. federally funded Medicaid). … In addition, if an alien subject to the public charge ground of inadmissibility lives and works in a jurisdiction where disease prevention methods such as social distancing or quarantine are in place, or where the alien’s employer, school, or university voluntarily shuts down operations to prevent the spread of COVID-19, the alien may submit a statement with his or her application for adjustment of status to explain how such methods or policies have affected the alien as relevant to the factors USCIS must consider in a public charge inadmissibility determination. For example, if the alien is prevented from working or attending school and must rely on public benefits for the duration of the COVID-19 outbreak and recovery phase, the alien can provide an explanation and relevant supporting documentation. To the extent relevant and credible, USCIS will take all such evidence into consideration in the totality of the alien’s circumstances.”
Ultimately, if it is something that impacts the employee or employee’s family’s health (i.e. seeking testing or treatment), the employee should be able to use whatever benefit is made available and it theoretically should not be held against them. In terms of any stimulus package, the language from USCIS is not quite as strong. Our general advice would be that if there are no other negative factors from a Public Charge perspective in the employee’s profile, then taking advantage of COVID-19 related relief probably will not be an issue. We cannot guarantee that, because the guidance is not completely clear and the nature of any relief is not yet finalized, but that appears to be the way things are going.
Hope this information helps with some of the questions and concerns you might have. We will continue to update you as new information is provided by the government.