Layoffs, Terminations, & Other Employment Changes for H-1B Workers in Light of COVID-19

With the declaration of a State of Emergency in Colorado due to the global pandemic from COVID-19, many Colorado employers are facing difficult decisions about how to manage their workforce in an uncertain and quickly-changing environment.

Employers who employ H-1B workers should understand what their additional obligations are, if any, when considering layoffs, terminations, and other employment changes in light of COVID-19. The information contained in this article is for general informational purposes only and should not be construed as legal advice.

Each H-1B petition filed by an employer must include a certified Labor Condition Application (LCA) from the Department of Labor. The LCA contains important attestations regarding the terms and conditions of the employment, the salary, and work location. The H-1B Petition itself also provides for the terms and conditions of an H-1B employee’s employment. The employment of H-1B workers thus creates obligations on the part of the employer both to the United States Citizenship and Immigration Services (USCIS) and the Department of Labor (DOL).

Changes in Work Location

With increasing recommendations and executive orders at the state, city, and county levels regarding social distancing and reducing in-person workforces, many employers are requiring or recommending their in-office employees begin working from home.

When considering a change in the place of employment for an H-1B worker, the employer must consider whether either a new LCA or a new H-1B Petition is required.

If an H-1B employee is moving to a new work location (such as a home office), and the new work location is within the same “area of intended employment," and there are no other material changes to the working conditions, then neither a new LCA or a new H-1B petition is required.  However, the certified LCA should be reposted at the new worksite, and the Public Access File (PAF) updated accordingly.

If the new work location is outside of the area of intended employment or is not within commuting distance, then both a new LCA and an amended H-1B Petition may be required.

However, given the uncertainty as to how long these social distances measures may remain in place, it is important to note that where the new work location is considered a “short-term placement” of less than 30 days (or 60 days if the employee is still based at their primary worksite), no new LCA or H-1B Petition may be required.

Work Furloughs & Benching

Employers facing a sudden or a prolonged slowdown in business or in the availability of work due to COVID-19 may consider whether employees may be furloughed, have their hours reduced, or be placed on temporary leave. Employers considering this should be familiar with the attestations contained on the LCA regarding the wages of H-1B workers, and with the statements on the H-1B Petition regarding employee wages.

An H-1B worker must receive 100% of the required wage rate as determined on the LCA. For a full-time, salaried H-1B worker, this means that the employee must continue to receive 100% of her salary even if she is furloughed, placed in non-productive status, or required to work fewer hours. For a part-time H-1B worker paid hourly, the employee must be paid her hourly rate for at least the number of hours listed on the H-1B Petition.

A pro rata calculation for salary based upon hours actually needed and worked is not permitted. Employers who fail to comply with the LCA requirements may be subject to fines, required to pay employees back pay, and debarred from approvals of any immigrant or non-immigrant petitions for foreign workers and from labor certification applications.

This applies only where there continues to be an employer-employee relationship and where the H-1B worker is available and eligible for work. Thus, an H-1B worker may take personal, unpaid leave such as for illness or caring for a family member, in line with the employer’s standard obligations and agreements regarding leave.

Layoffs &Termination

In the event that an employer must layoff or terminate an H-1B employee, the employer should ensure that it follows the requirements to complete a bona fide termination of the employment relationship, otherwise it may still be liable for payment of the H-1B worker’s salary, as discussed above.

When an H-1B worker is terminated prior to the approval of the H-1B Petition (and the period of the H-1B worker’s authorized stay), the employer must notify the USCIS of the termination, in order for USCIS to revoke the approved Petition. The employer must also offer to compensate the employee for the reasonable costs of return transportation back to her home country.

Finally, the employer should withdraw the approved LCA associated with that H-1B Petition, as this affects the timing of the employer’s retention requirements of the Public Access File.

This general information should not be construed or relied upon as legal advice. If you have questions about how your business can best address challenges and changes with the foreign workers in your workforce in light of COVID-19, please contact Kolko & Casey, P.C. at (303) 371-1822 for a full legal consultation with an experienced immigration attorney.