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.

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