Welcome Aboard, Foreign Employees!
By Rayan Omer
With a swipe of a pen, a simple signature can change lives forever. President Trump issued an executive order on Monday June 22,2020, suspending most visas temporarily until the end of the 2020 year. Business leaders have fiercely fought the order because it affects obtaining critical talent from international countries.
The proclamation denies entry to the United States to four major “nonimmigrant” visa categories, except for workers in the “food supply chain” industry. The major visas affected are: “H-1B visas for skilled workers, H-2B visas for low-skill jobs, H-4 visas for dependents of certain visa holders, J visas for those participating in work and student exchanges and L visas for transfers within a company.” Read more at The New York Times.
The current suspension would affect big tech companies like Google, Facebook, Twitter, and even President Trump’s businesses. It was reported by Palm Beach Post that Trump’s businesses hired dozens of H-2B visa holders last year.
The logic behind this order is to revive the economy by having employers work hard to find the needed talent within the United States. The negative impact of putting those visas on hold affects small businesses as well as big companies. Kathy Muncil, CEO of the Fort William Henry Hotel, said it had been a favorable agreement between international students and Lake George residents, where the students would make money that they could send back to their families. At the same time, local businesses depended on their patronage. Between 35 to 40 international students work at Fort William Henry every summer, ranging from staffing the front desk to waiting tables and housekeeping.
The COVID-19 era has led to many changes in immigration procedures and processes. It’s critical for small business owners to protect themselves when continuing business operations with foreign employees.
Here are a few questions for small businesses to consider when having employees who hold H1-B visas on board.
What is an H-1B visa?
Before diving into the considerations, first, let’s define what an H-1B visa is.
It’s used for workers with skilled specialties. As defined by the U.S. Citizenship and Immigration Services (“USCIS”), a specialty occupation is an occupation of which "the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's degree or higher."
Examples of H-1B specialties include engineering, journalism, medicine and health, research, law, business specialties, and many more. This visa allows an immigrant to enter and stay in the U.S. based on the employer’s sponsorship.
How to apply for the H-1B visa?
Before the temporary suspension of the visa, an H-1B visa requires an employer to submit two applications. One is the Labor Conditions Approval (“LCA”) with the Department of Labor (“DOL”) and a following petition with the USCIS.
The LCA application, which can be filed electronically through the ICERT Portal System, requires employers to provide specific information, including attesting to paying the H1-B visa fair wages and certifying that the hiring of the H1-B visa employee won’t negatively impact those working in similar roles for the company. Furthermore, there are no labor disputes at the time of completing the H1-B visa. Lastly, the employer attests to informing the employees at the company.
Once the LCA application is approved, the employer then files form I-129 with the USCIS for nonimmigrant workers. According to STILT, the form should include the fees, applicant’s resume, employment agreement, training certificates, and finally the letter of support.
If the Coronavirus dilemma caused financial strain on your business or the foreign employee’s performance was not up to the level of your expectation, then furloughing or laying off the H-1B visa holder is inevitable. But, this action would change the information provided to the DOL and the USCIS, thus potentially causing liability to the employer. Hence, it is crucial to comply with the procedures required after laying off your employee.
What is the employer’s responsibility when laying off a foreign employee?
Upon letting go of an H-1B visa holder, a small business owner must withdraw the LCA filed with the DOL, notify USCIS of the termination of the employment, and lastly, pay for his return tickets to his home country. An employer is required to pay the “reasonable costs of return transportation” for the employee only. This condition does not apply to the employee’s family.
In the event of an employee terminating their employment, a sponsor is not required to provide for his return transport. Additionally, if the termination occurred after the expiration period of the H-1B visa stay, this condition also does not obligate the employer to pay reasonable transportation fees.
Am I required to pay employee’s salary until USCIS revokes the application?
It takes months until the USCIS ultimately revokes the petition. In the meantime, an employer is not required to pay wages for his employee until a decision is made. A small business owner is obligated to pay his H-1B visa holder as long as there is an employment relationship. Once the contractual agreement is terminated, the salary ends as well.
Of course, the employer is required to pay the employee until his last day of employment, on top of any benefits provided by the company’s policy from severance, notice period, and so on.
Violations of H-1B visa regulations
An employer should be cautious not to violate the regulations and policies provided by the H-1B visa program because an employee can report such violations to the Department of Labor Standards Employment Administration.
According to Immihelp, the civil sanctions for violating the H-1B rules could range from $1,000 to $35,000 per violation. Also, back wages may be additionally attached to the said penalties.
With the pandemic and the shelter-at-home order, the H-1B visa holder might not be able to work on the work site location provided in the applications sent to the DOL and the USCIS. The question becomes whether an H-1B employee can work remotely without risking potential liability to the employer.
Can H-1B employees work remotely?
Avoiding physical contact to flatten the curve has caused the majority of companies to work remotely. An H-1B worker is no exception. Generally, a foreign worker can move to a new worksite location in the same area of their employment as long as the terms of the work remain the same.
The worksite must be within reasonable commuting distance from the previous site. The DOL released frequently asked questions to confirm that H-1B holders can work remotely, provided the conditions above are met. On the other hand, if these requirements are not satisfied, a new ETA Form 9035 Labor Condition Application must be filed.
Nevertheless, even if an amended LCA is not obligated, the employer must post a notice at the new workplace site for ten days. Due to the pandemic, the DOL has loosened the ten days’ requirements, to as soon as practicable, but no later than 30 calendar days of the employee starting at the new location site. For more information on the H-1B visa, check out Ogletree Deakins.
The financial strains of COVID-19 have hit everyone. For small business owners to sustain their businesses, it has become critical to reducing the workers’ working hours or changing the job duties to what the market needs now to survive during the pandemic.
Does a change in employee job duties during COVID-19 affect the H-1B visa status?
When an H1-B employer changes the duties or the working hours of the employee to keep his business running during these hard times, the question becomes whether this change is material or immaterial to require the amendment of the H-1B visa petition according to Forbes.
A material change in the working hours or job duties of the H-1B employee would require filing for a petition amendment with the USCIS. If the job duties vary significantly from the original job requirements, this would be a material change. For example, if you have employed a lawyer, yet change his job duties to be an accountant, then this change is a massive variation in his job duties and triggers the need to file for a petition.
Additionally, if an employer lowered the working hours of the employee to maintain his business, such as going from full-time to part-time hours, then this would be a material change that requires a petition. If the reduced hours are minor, for instance, from 40 hours to 38 hours, this will not trigger an amendment to the H-1B petition.
Can Employers Furlough H-1B Visa Holders?
Furloughing your workers is a smart move when you want to keep your talented employees on board, but at the same time avoid salary payments. Unfortunately, this condition does not apply to H-1B visa holders because this condition would amount to a material change in their application status provided originally to the DOL and the USCIS.
An employer must continue to pay for his foreign employee, even if they are not working productively at the moment. Thus, according to Nixon Peabody, an H-1B employee must be paid the wages approved by the Department of Labor on the LCA and reflected on the H-1B petition submitted to USCIS.
Discriminating against H-1B visa employees
An employer is not obligated to sponsor an employee’s visa; nevertheless, an employer should not discriminate against workers due to the future expiration date of their permit. In such circumstances, a small business owner may re-verify form 1-9 to confirm ongoing work authorization, but may not refuse to continue to employ such an individual, or have them on-board, according to Faegre Drinker.
To conclude, an employer should be aware of all the special considerations arising from having foreign employees in your business. It’s critical to comply with the rules and regulations when applying for an H-1B visa holder or by continuing business operations due to the changes in policies that keep happening because of COVID-19. President Trump has sought to reduce the unemployment rate in the US during the pandemic by suspending most foreign visas.
To adapt to the circumstances, a small business owner would find himself forced to furlough employees, lay them off, or reduce their working hours. But H-1B visa holders require an amendment petition in all those instances, if the change was material to their previous condition.
A simple shelter-at-home order poses an obligation for the employer with a foreign employee to ensure that the employee’s home office is still within the normal commuting distance from the original worksite. Otherwise, if the employee’s home office is outside the normal commute distance, a 60 days’ grace period is provided. In the case where an employer becomes aware that the current work situation is longer than 60 days, a new LCA form is required, in addition to an amended H-1B visa petition.
Even though local businesses are unhappy with the suspension of visas due to the executive order, people have been afraid to travel anyway because of the Coronavirus. It’s a difficult time for everyone; having a positive attitude and thinking outside the box is key to success in the era of COVID-19 business immigration.
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