By Darius Amiri, Chair of Immigration Department at Rose Law Group
This summary provides guidance to employers about complying with the H-1B regulations during an economic downturn. The summary addresses the following likely situations that an employer might come across during this unfortunate turn of events:
1.Reduction in H-1B visa holder’s work hours (from full-time to part-time).
2. H-1B working from home or outside the normal workplace.
3. Lowering wages of many or all employees.
4. Termination of H-1B employees.
5. Retention of public access file(s).
A. General Information about Amended H-1B Petitions
• “Material changes” in the terms and conditions of the H-1B visa holder’s employment requires an amended H-1B petition.
• An amended petition will require a new labor condition application (LCA) filed to the U.S. Department of Labor.
• An amended petition will require a new I-129 form to be submitted to USCIS.
• When does the petitioner (employer) NOT need to file an amended petition?
o When the employee moves to a new job location within the same area of intended employment. However, the petitioner must still post the original LCA in the new work location within the same area of intended employment (Example: An H-1B employee presently authorized to work at a location within the Los Angeles metropolitan statistical area would not require a new LCA if merely transferred to a new worksite in Los Angeles, but the petitioner/employer would still need to post the previously obtained LCA at the new work location).
o Short-term placements: Under certain circumstances, an employer may place an H-1B employee at a new worksite for up to 30 days, and in some cases 60 days
(where the employee is still based at the “home” worksite), without obtaining a new LCA.
o Non-worksite locations: If the H-1B employee is only going to a non-worksite location and there are no material changes in the authorized employment. A location is considered to be “non-worksite” if:
▪ The H-1B employee is going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
▪ The H-1B employees spend little time at any one location; or
▪ The job is “peripatetic in nature” such as situations where their job is primarily at one location but the occasionally travel for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive (i.e. not exceeding 5 consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).
• The amended petition will have a filing fee of $460.00. The additional $1,500 or $750 ACWIA fee will only be required in certain circumstances which can be discussed based on the individual’s situation (i.e. is there an extension of time being requested?)
• As of the drafting of this advisory, USCIS has suspended premium processing. This can pose a problem in some cases as the amended petition must be approved before the company can take the actions (material changes). Right now, processing times for amended H-1B petitions can take months without the premium processing option available.
• IMPORTANT: H-1B EMPLOYEES MUST BE PAID THE REQUIRED WAGE RATE FOR ALL NONPRODUCTIVE TIME CAUSED BY CONDITIONS RELATED TO EMPLOYMENT, SUCH AS LACK OF ASSIGNED WORK.
o Full-time salary workers must be paid the full amount of the required wage rate. Full-time hourly workers must be paid for 40 hours (or such other number of hours as the employer can demonstrate as full-time employment for its hourly employees).
o Part-time hourly workers must be paid for at least the number of hours indicated on the Forms I-129/I-129W petition and incorporated by reference on the LCA.
• Benching of H-1B employees is not permissible.
B. Reduction in Work Hours Likely Requires Amended Petition
• Per Department of Labor, part-time employment for H-1B’s is considered less than 35 hours: https://www.dol.gov/agencies/whd/fact-sheets/68-h1b-fulltime-employee
• Must check the prevailing wage information to see what the hourly rate is for that specific occupation in the geographic location (MSA) where the employee is working. Link to database is here: https://flcdatacenter.com
• Part-time will require the employer to use the hourly rate instead of the yearly salary.
• Can start paying part-time as of the filing of the amended petition with USCIS.
C. Working from Home or Outside the Normal Workplace
• If the employee is going to be telecommuting, and they live outside of the Metropolitan Statistical Area (MSA) from the worksite where the petition was originally based, the employer is required to file an amended H-1B petition (and LCA with Dept of Labor) to the USCIS with a new filing fee.
• In this scenario, the USCIS views this as a situation to which portability applies and therefore the H-1B employee can immediately begin work at the new place of employment once the amended petition is filed with USCIS.
• If the different location is within the same MSA of the originally intended employment, there will still be a requirement of an LCA being posted at the new worksite.
• This could also have an impact on the wage level/salary level as it might be in a different MSA that has a higher or lower wage.
D. Lowering Wages of Many or All Employees
• The H-1B employer must pay its H-1B worker(s) at least the “required” wage which is the higher of the prevailing wage or the employer’s actual wage (in-house wage) for similarly employed workers.
• Therefore, if the company is going to lower the wages of all employees, they need to consider the fact that the H-1B employees still must be paid the higher of the prevailing wage or the employer’s in-house wage. More information can be found here: https://www.dol.gov/agencies/whd/fact-sheets/62g-h1b-required-wage
E. Termination of Employee(s)
• If the termination takes place prior to the conclusion of the H-1B employee’s expiration of their authorized stay, they can remain in the U.S. for the shorter of 60 days or when the existing validity period end. This rule can only be utilized once by the H-1B holder. Therefore, if they have previously used this 60-day grace period, they cannot utilize it again. It’s a one-time opportunity and cannot be aggregated to future time periods.
• Department of Labor requirements of a “bona fide termination”: Notify both the H-1B employee and the USCIS in writing of the termination. Also, offer to pay the H-1B employee for the reasonable costs of return transportation abroad. If the employer is found to have failed to fulfill these requirements, the employer may be found liable by the DOL for back wages through the date on which the employer’s H-1B approval expires.
• DOL has also found that a “bona fide termination” can also occur and end the employer’s liability for H-1B wages in cases where a terminated employee subsequently secures a new job with a new authorized H-1B employer. There still exists the requirement of notifying the H-1B employee that he/she is terminated (in writing or email).
• “Reasonable costs” of return transportation is to the employee’s last country of residence. It does not include the cost of relocating family members or property. It is also not required for an employee who elects not to depart the U.S.
o Suggestion: Terminated H-1B visa holders must contact their own immigration legal counsel and not the immigration counsel that filed the original H-1B petition on behalf of the employer, as there is now a legal conflict.
• Employers should maintain careful records of the H-1B employee’s termination.
• Employer should notify USCIS in writing of the termination.
• Employer must withdraw the LCA with the Department of Labor.
• Retention of compliance with all these rules will help to insulate the employer from further H-1B liability and the potential of having to pay back wages.
F. Public Access File Retention
• The employer must maintain the public access file for ONE YEAR past the final date the H-1B employee was employed, pursuant to the LCA.
For additional information, please do not hesitate to contact our office at 480-291-0740, or by email at darius@roselawgroup.com
