Covid-19 has turned the US labor market into a bloodbath – but it’s even worse for those foreign persons who work here temporarily on visas like the H-1B (professional) or H-2B (seasonal workers).
First, try to get the employer to give the H worker time to change into a different status before the effective termination date. The day one is terminated is the day the H worker is out of status. Thereafter, you cannot request a change of status or extension of status in the US. Even if the H worker changes to B-1/2 visitor status before the termination date, that will at least give you time to look for other work while it is pending and lawfully stay in the US while it is pending.
Is Termination the End?: There is an exception to the rule above for H-1B employees in requesting an extension of status. Under regulation, if you are terminated, you have a 60-day period to find another H-1B employer even IF you are out of status. This is referred to as “H-1B Portability.” While the 60-day period may be difficult to meet in this pandemic, it at least exists and can be taken advantage of if you can find new employment quickly. Then your new employer can file a new H-1B for you within the 60-day period and it is approved, your H-1B extension of status will be granted without issue of your “gap period.”
What About H-1B Wages if I am Not Terminated but Benched or Furloughed?: DOL regulations require H-1B employers to continue to abide by the labor conditions to which they agreed when filing the H-1B petition even if a pandemic occurs. These are the terms set forth in the underlying ETA Form 9035, Labor Condition Application (LCA). The worker’s hours or location or wage amount cannot be changed without serious consequences to the employee. An LCA violation made by the employer results in the H-1B employee becoming out of status. Such violations can also negatively impact the employer such as fines, back wage obligations, and in serious cases debarment from the DOL’s temporary and permanent immigration programs for a period of time.
What if the H-1B worker is COVID-19 Positive or Sick? There is an argument to be made that the US employer would not then need to pay the H-1B worker during this non-productive period.
Changing H-1B Worker Status from Full to Part Time? This is doable but requires a New LCA and an Amended H-1B filing. My bar association AILA is requesting the amended H-1B Petition to be waived, but that has not been offered or confirmed by USCIS.
Changing H-1B Worker Location In Light of Shelter-in-Place Rules? This is trickier. The H-1B worker can only work in locations listed on the LCA. If the worker’s home location is in the same Metropolitan Statistical Area (MSA), then an amended H-1B is not required nor is a new LCA – just a new Notice of filing. US Department of Labor recently relaxed the timing of the Notice to be no later than 30 days after the re-location (normally its only before relocation).
If the H-1B worker’s home location is outside the MSA, then a new LCA AND Amended H-1B should be filed to reflect the location change. The H-1B employer may avoid having to do this if it places the H-1B worker at an unintended location for only 30 up to 60 “work days” if it meets certain conditions. This is a good way for an employer to buy some time and avoid having to create LCA violations or new filings.
Can I Cut My H-2B Worker’s Wage? ¾ Guarantee Wage Rule: Under § 20 CFR 655.20(f), the employer must guarantee that it will offer employment during at least three-fourths of the time in the 12-week period that it has retained the employee. If, however, fulfilment of the job is impossible for reasons outside the employer’s control, then per 20 CFR 655.20(g) the contract may be terminated:
“[if] the services of the worker are no longer required for reasons beyond the control of the employer due to fire, weather, or other Act of God, or similar unforeseeable man-made catastrophic event (such as an oil spill or controlled flooding) that is wholly outside the employer’s control[.]”
Can I Terminate my H-2B Worker due to COVID-19 lack of work?
Yes. But there are many obligations. H-2A and B Employers may request approval from the OFLC Chicago NPC Certifying Officer to terminate work under the job order and/or work contracts before the end date of work due to the impact of the COVID-19 pandemic. An employer may submit a request for “contract impossibility” to the Chicago NPC Certifying Officer using the following method: Email: TLC.Chicago@dol.gov Include the phrase “COVID-19” followed by the full case number in the email subject line.
• An employer continues to be responsible for its obligations under the work contract until receiving a favorable “contract impossibility” determination from the Certifying Officer.
• In the event that the Certifying Officer makes a finding of contract impossibility, the employer should document its efforts to comply with each aspect of the contract impossibility provision under the regulatory requirements applicable to the H-2A (20 CFR 655.122(o)), H-2B (20 CFR 655.20(g)), visa programs.
These are difficult times for both US employers and their H-1B and H-2B workers and staff. Please give H-1B immigration lawyer, Catherine Brown, a call if you need immigration advice about your H-1B or H-2B worker during the COVID-19 pandemic. 303-322-2117.