1. Do the terms and conditions of the H-1B employment still apply in light of the COVID-19 pandemic?
Yes, the terms and conditions specified in the Labor Condition Application (ETA 9035) and the H-1B petition still apply in general unless exempt by the regulation or the government.
2. Does an employer's obligation to pay H-1B employees the required wage continue to exist in light of the government's shelter-in-place policy?
Generally speaking, an employer must continue to pay H-1B employees according to the terms of the LCA. There are special rules governing the obligation to pay for non-productive hours of the employee (see below.)
3. Can the employer stop paying the employee if there is insufficient work?
If an employee becomes non-productive due to insufficient work, the employer must pay the employee the normal wages according to the LCA. "Benching" an employee or failing to pay the required wages for non-productive hours is not permitted by law.
4. Are laid-off H-1B employees eligible for state unemployment benefits?
No. Although H-1B employees pay for unemployment insurance tax, if they lost their job they would have lost their legal status or ability to work - a requirement for state unemployment compensation. However, their H-4 spouse who worked on EAD may be eligible for state unemployment benefits.
5. If an employee requests for leave because of personal reasons, can the employer stop paying the employee?
If an employee asks for a leave of absence or unpaid leave for personal reasons unrelated to the employer, the employer does not have to pay the employee. For example, if an employee requests time for an extended vacation, a sabbatical leave, or caring of a sick relative, then the employer does not need to pay the employee the required wage.
6. If an employee needs time to recover from an accident, must the employer continue to pay the employee?
This situation is similar to an employee taking maternity leave. The employer's obligation to pay is governed by the employer's benefit plan or other applicable laws such as the Family and Medical Leave Act or the Americans with Disabilities Act.
7. Can an employer furlough or bench an H-1B employee on account of a shelter-in-place order from the government authorities?
Generally speaking, an employer must continue to pay H-1B employees according to the terms of the LCA. There are special rules governing the obligation to pay for non-productive hours of the employee (see below.)
3. Can the employer stop paying the employee if there is insufficient work?
If an employee becomes non-productive due to insufficient work, the employer must pay the employee the normal wages according to the LCA. "Benching" an employee or failing to pay the required wages for non-productive hours is not permitted by law.
4. Are laid-off H-1B employees eligible for state unemployment benefits?
No. Although H-1B employees pay for unemployment insurance tax, if they lost their job they would have lost their legal status or ability to work - a requirement for state unemployment compensation. However, their H-4 spouse who worked on EAD may be eligible for state unemployment benefits.
5. If an employee requests for leave because of personal reasons, can the employer stop paying the employee?
If an employee asks for a leave of absence or unpaid leave for personal reasons unrelated to the employer, the employer does not have to pay the employee. For example, if an employee requests time for an extended vacation, a sabbatical leave, or caring of a sick relative, then the employer does not need to pay the employee the required wage.
6. If an employee needs time to recover from an accident, must the employer continue to pay the employee?
This situation is similar to an employee taking maternity leave. The employer's obligation to pay is governed by the employer's benefit plan or other applicable laws such as the Family and Medical Leave Act or the Americans with Disabilities Act.
7. Can an employer furlough or bench an H-1B employee on account of a shelter-in-place order from the government authorities?
No, even under this situation, an employer must continue to pay the H-B employee the required wage. Otherwise, an employer could be subject to liability including fines, back wage obligations, as well as debarment from the DOL’s temporary and permanent immigration programs for a period of time.
8. What if an employee has contracted with COVID-19 and become unable to work?
The employer generally does not have to pay an employee who is not able to work because of reasons unrelated to the employer. However, if employer has a rule regarding quarantining an employee who has contracted COVID-19, this could be classified as a decision by the employer. In this situation, the terms of the employer's benefit plan or other laws such as the Family and Medical Leave Act or the Americans with Disabilities Act may also apply.
9. Can an employer reduce the hours of an H-1B worker or convert her status from full-time to part-time?
Yes. In this situation, a material change has occurred and the employer must file a new LCA to reflect this change. Additionally, the employer is also required to file an amended H-1B petition to report this change to USCIS. The change may only take effect upon the receipt of the H-1B petition by USCIS.
10. If an employer cannot afford to pay an H-1B worker the required wage or simply does not wish to continue the sponsorship, what must the employer do in order to terminate its obligation to pay?
The regulation provides that the obligation to pay the required wage stops if there has been a bona fide termination of the employment relationship. A bona fide termination means that the employer has notified USCIS that the employment relationship has been terminated so that the petition is canceled. Further, an employer is responsible for paying for the return transportation cost of the employee if the employer terminates the employee before the end of the approved period.
11. If an H-1B employee is laid off due to COVID-19, can the employee change status or transfer to another employer?
The regulation provides that the obligation to pay the required wage stops if there has been a bona fide termination of the employment relationship. A bona fide termination means that the employer has notified USCIS that the employment relationship has been terminated so that the petition is canceled. Further, an employer is responsible for paying for the return transportation cost of the employee if the employer terminates the employee before the end of the approved period.
11. If an H-1B employee is laid off due to COVID-19, can the employee change status or transfer to another employer?
Yes, an H-1B employee who is laid off has a grace period of 60 days or until the end of the approved employment period, whichever is shorter, to file for a change of status or to seek sponsorship by another H-1B employer.
12. If an H-1B employee's work-site changes due to COVID-19, must a new LCA be obtained?
If the new location is within the same metropolitan area or commuting distance from approved job site, a new LCA is not required. However, a notice of the H-1B job opening must be posted at the new job site as usual. DOL will consider the posting timely if the notice is posted within 30 calendar days after the worker begins work at the new job site location.
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