IMMIGRATION / KEEPING H-1B TALENT TO SUPPORT POST-COVID-19 EMPLOYER RECOVERY

by | Apr 9, 2020 | COVID-19, Immigration

By Michelle Scimecca

How is your COVID-19 plan?  I have an exercise for you; consider making the following table for your organization:

Date Changes due to COVID-19 Impact of change Consequence

There are a few reasons I suggest this exercise.  First, my hope is you can give yourself a pat on the back – you have been exceptionally resourceful, good job!  Second, my expectation is that you could be reaching a new phase of needing to assess data from your “econo-coma” to continue to adapt.  Third, if you are an employer addressing additional work modifications and have foreign nationals working in H-1B status, my hope is that you have just made a list of reasons under 20 CFR § 655.731(c)(7)(ii) to demonstrate that you, indeed, have circumstances where it may be ok not to pay wages, not to terminate your organization’s H-1B employee, and –  still – not to violate the employment terms and conditions of the labor condition application (LCA) that the U.S. Department of Labor certified for your organization to hire the H-1B employee.  DOL guidance remains absent in this area.  I submit, though, that the talent your organization invested in is talent your organization will look to post-COVID-19.

Of course this type of assessment is fact specific.  The LCA and its associated regulations were not written for COVID-19 circumstances.  The regulations point to limited circumstances under which wages need not be paid to an H-1B worker.  Termination is one of them.  But, there may be a path that includes both keeping international talent and not draining financial resources during these unique times.

Specifically, DOL regulations require H-1B wage payment pursuant to the LCA as follows:

  • Wages must still be paid if the H-1B nonimmigrant is not performing work and is in nonproductive status due to a decision by the employer. Noted examples requiring payment include:  lack of assigned work, lack of a permit or license, or any other reason except the reasons articulated at the next bullet.  Question:  should a COVID-19 stay-at-home order be considered an employer’s decision, thus presenting circumstances where wages must be paid?  This likely depends on the employer and the circumstances of employment.
  • Wages need not be paid if the H-1B nonimmigrant experiences a period of nonproductive status due to conditions unrelated to employment, which take the nonimmigrant away from duties at his/her voluntary request and convenience. Noted examples include:  touring the U.S., caring for an ill relative, or circumstances that render the nonimmigrant unable to work, including:  maternity leave, or car accident that temporarily incapacitates the nonimmigrant.  The regulations go on to indicate that the employer is not obligated to pay the LCA wage provided that such a period is not subject to payment under the employer’s benefit plan or other statutes like FMLA or ADA.  Question:  is an H-1B worker’s need to stay home to manage elearning for their school-age child an opportunity to secure voluntary nonproductive status – which would avoid H-1B termination due to an employer’s inability to meet the LCA wage obligations?  This likely depends on whether the H-1B employee is given this as an option s/he can sign off on.

COVID-19 is not a voluntary choice; yet, could COVID-19 and related circumstances offer acceptable conditions where wages under the LCA need not be paid and where an H-1B worker can still maintain status without an LCA violation?  Maybe.

Termination will relieve your organization’s wage obligation to an H-1B employee.  But, there could be circumstances supporting H-1B status for key talent and a path to success for your organization post-COVID-19.

Other tools to position your organization post-COVID-19 to excel include:

  • (H-1B) LCA amendments to adjust for part-time employment and temporary work sites.
  • (H-1B) Employee re-location outside the U.S. where H-1B LCA obligations do not exist. Note:  only practical once travel is permissible.
  • (Everyone) Remote I-9 document inspection temporarily permitted for needed workforce adjustments. Flexibility Requirements Related Form I-9 Compliance.

If your organization invested in key talent through U.S. immigration sponsorship, some circumstances may permit your organization to adjust LCA wage obligations to retain that H-1B talent for the post-COVID-19 recovery.

Disclaimer: These materials are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.  Use of and access to these materials does not create an attorney-client relationship between the Vogel Law Firm and the user or browser.  The opinions expressed at or through these materials are the opinions of the individual author and may not reflect the opinions of the Vogel Law Firm or any individual attorney.  Under no circumstances shall the Vogel Law Firm have any liability to you for any loss or damage of any kind incurred as a result of the use of the information or your reliance on any information provided.

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