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IMMIGRATION

[H-1B] How to Maintain H-1B Status During COVID-19 04/10/2020

Reduced hours and salary, working from home, furlough, and termination

 

As the result of COVID-19 pandemic, many U.S. employers have been forced to shut down or modify their businesses in compliance with various government orders. The crisis is impacting not only the employers but also individuals in H-1B status or some other temporary nonimmigrant worker visa status in the form of reduced hours or termination. This newsletter is designed to assist H-1B visa holders who are facing challenges in maintaining their employment and lawful status.

 

What should I do if my work hours or salary is reduced?

The H-1B visa program contains a number of employer obligations. Importantly, an employer must pay the offered wage (or prevailing wage) for the duration of the approved H-1B petition or until there is a bona fide termination of the your H-1B employment. Reducing the rate of pay or hours per week as noted on your H-1B petition would result in a violation of the employer’s obligations under the Labor Condition Application (“LCA”). In addition, underpayment of the wage and/or reduced work hours (for example, from full-time to part-time) can serioulsy affect your employee’s ability to extend the stay, change employer, or change to another visa status or to adjust to a permanent resident. In a worst-case scenario, not maintaining status could get you deported. To avoid this consequence, the employer must submit an amended H-1B petition to inform USCIS of the change. Under the H-1B regulations, changing from full- to part-time employment (or the rate of pay) is considered a “material change,” triggering the requirement for a new LCA and an amended petition.

 

What if I am requested to work from home?

The H-1B visa is location specific, meaning that you are only authorized to work at the worksite(s) initially listed in your H-1B petition. As explained above, an employer must submit an amended H-1B petition when there is a material change. A material change includes a work location change as well. The H-1B regulations allow for short-term placements at temporary worksites for up to 60 work days without filing a new LCA or an amended petition, provided that you continue to be paid the offered wage in the H-1B petition and your home is within normal commuting distance of the worksite. In this situation, the employer must post LCA notices at the worksite or through intranet for 10 days. If you are working from home that is outside of the normal commuting distance, this exception does not apply, and both new LCA and amended H-1B petition, adding your home location, must be submitted. Since there is no rigid measure for what constitutes a “normal commuting distance,” you may need to consult a qualified immigration attorney.

 

What if I am put on forced unpaid leave or furlough?

If your employer is implementing a furlough, you will need to talk with the employer asap. Under the H-1B regulation, employers are responsible for paying the required wage to their H-1B employees at all times during the H-1B validity period. This applies even when you are in nonproductive status unless that nonproductive period arose due to (1) conditions unrelated to the employment and (2) was taken at your voluntary request. Thus, an H-1B employee placed on furlough must be paid at least the required wage for the duration of the furlough. Unpaid leave is generally not an option for such employees.

 

What should I do if my employment is terminated?

Federal regulations allow H-1B employees a grace period of up to 60 days upon termination of their employment. This grace period not only gives you more time to leave the United States, but it also provides an opportunity to find a new employer who will file an transfer petition on your behalf within the grace period. Similarly, you could also change to some other nonimmigrant status during the period, such as to B-2 (visitor), F-1 (student), O-1 (extraordinary artist or individual in the sciences, education, business, or athletics), and so on. If you do not timely file a transfer petition or status change application and remain in the United States, you can be placed in deportation proceedings. Thus, if you just received a termination letter from your employer, please seek out a new employer or a qualified immigration attorney for a consultation.