While COVID-19 has hit the U.S. hard, of those most heavily impacted by COVID-19 are IT and other consultancy firms that depend upon the business of their end-clients. Consulting firms are also faced with additional challenges from COVID-19 as end-clients shutdown their offices, convert to telework, or worse yet terminate projects, all of which can create compliance concerns for your firm. To address some of the most common concerns and questions you may find yourself facing, we have put together the below Most Frequently Asked Questions:
Q: May I Reduce the Wages of My H-1B Employees in Response to the Business Downturn Caused by COVID-19?
A: Unfortunately the only instance where a reduction in wage is permissible without filing an amendment petition with the USCIS is in the few instances where an employee is being paid a higher wage than the wage indicated on the current LCA and H-1B petition. This can happen if after filing the most recent petition the employee received a raise. In most cases, the only way you can reduce the wages paid to an H-1B employee is by filing an amendment petition to reflect the reduction in wages.
Q: Can I Bench My Employees Due to COVID-19? What About Furlough or Layoffs?
A: For those unfamiliar with the term, “benching” refers to the practice of an employer placing their employees in non-productive status (“on the bench”) typically due a lack of projects or other revenue-generating work, and consequently without paying the employee while they are in non-productive status. As with reducing wages, the practice of benching is not allowed under usual circumstances, and even with the COVID-19 outbreak, neither the USCIS nor the DOL have indicated a change on this stance.
Furloughing refers to a similar practice, whereby an employer will suspend an employee’s employment, typically as a result of economic conditions. Because furloughing employees is essentially benching it too is not permitted for H-1B employees, as the employer’s obligations to pay the wages indicated in the LCA and H-1B petition continue until there is a bona fide termination.
Layoffs on the other hand typically refer to the practice of terminating an employee or otherwise eliminating their position, usually for economic reasons. In the case of layoffs, these are typically permissible, since it essentially amounts to a termination, however, employers should know that once they layoff an H-1B employee, if they later wish to rehire the employee they will need to file a new H-1B petition. Employers should also be aware that if the employee has not maintained their H-1B status they likely will not be eligible to immediately resume working for the employer, and in some instances may need to first travel abroad, obtain a new H-1B visa, and then return to the U.S. (i.e., consular processing).
For more information on what constitutes a bona fide termination, check out our post here.
Q: My End-Client has Instituted Work From Home (WFH) Policies, Do I Need to Do Anything to Ensure Compliance?
A: Before discussing options about allowing employees to work from home or otherwise telework, it is important to remember that by signing the Labor Condition Application (“LCA”), employers attest that the H-1B workers will not adversely affect the working conditions of similarly employed U.S. workers, and that nonimmigrant workers will be afforded working conditions on the same basis, and in accordance with the same criteria, as offered to U.S. workers similarly employed. This means that if an employer is offering H-1B workers the flexibility to telework from their home or relocate the H-1B employee, the employer must offer those same flexibilities to its U.S. workers similarly employed.
That being said, in most instances a shift to working from home does not typically require a new petition to be filed, however, it does still require action to be taken to ensure compliance. If the employee’s home office where they will be teleworking from is within a normal commuting distance of the worksite location indicated on the LCA and in the H-1B petition, then the employee must post two copies of the LCA at their home, and copies of these postings must be maintained in the public access file. If the employee will be working from home at a location that is not within a normal commuting distance of the worksite location indicated on the LCA and in the H-1B petition, then the employee can be covered initially under the short-term placement rule, but after 30 days (or in some instances 60 days) an amendment petition must be filed.