Many individuals on the H1B specialty occupation visa are worried about their status in the country, given that the petitioner or the employer or even the third-party worksite has temporarily shifted to remote or distance work. The following is a short write-up with commonly asked questions. Hope it helps. We strongly recommend you consult with an attorney prior to taking steps which may affect your status in the country.

1. Is working from home permissible?

Generally, yes. You’re self-isolating? Good! The H1B worker can relocate to a new worksite within the same area of intended employment as long as there is no other material change to the petition already submitted to USCIS. DOL confirmed this recently that if the H1B worker is moving to a new job location, (e.g. a home office within normal commuting distance) a new labor condition application is generally not required. However, if an H1B worker is relocated to the home office, notice must still be provided as per the regulations. Keep in mind that if there is a material change and that the H1B worker is now planning to move outside the normal commutable distance, the safer option would be to file an amendment. While exceptions for roving employees and temporary placements do exist, it is best to file an amendment if the original worksite or original terms of employment as submitted in the H1B petition to USCIS ARE unavailable. 

2. What is the notice requirement when an H-1B worker is working from home?

The employer must provide either electronic or hard copy notice at the worksite locations for a total of 10 calendar days. In light of COVID-19, it seems that the employer’s best bet is to provide electronic notice to all employees that are affected by the worksite change that is in the same occupational classification. Email notification seems to be key here! Generally, notices are required to be provided on or before the date an H1B, H1B1 or E3 worker begins working at a new worksite location. However, in light of the pandemic, notice will be considered timely when placed as soon as practical and no later than 30 days after the worker begins work at the new worksite.

3. Can H-1B Workers be furloughed?

Generally, furloughed employees must continue to be paid the required wages set forth in the LCA. H1B workers must be paid their wages as per the LCA or company standards (if higher than the LCA). If an employee is in nonproductive status due to a decision of the employer, the employer continues to be obligated to pay the required wage. However, if the employee is in non-productive status due to a decision of the employee, such as maternity leave or caring for a sick family member, the employer is not obligated to pay the required wage. It is important to note that if the employee’s non-productive time is still subject to payment under federal or state laws, such as the Family and Medical Leave Act, the employer continues to be responsible for payment. 

4. Can an employer require an employee to exhaust accumulated paid time off?

Generally, yes.

5. Can an employer terminate an H-1B employee?

Generally, yes. If an employer chooses to terminate an H1B employee, the employer is responsible for return transportation. The beneficiary may stay in the United States for up to 60 days or if shorter, until the end of the existing validity. During the 60-day period, the beneficiary may not work. However, the beneficiary may have another employer file an H1B change of employer to transfer employment.

6. Can an employer reduce an H1B workers hours?

Yes. As this is considered a material change in the terms and conditions of the employment, the employer should file an H1B amendment. The first step is to file a new labor condition application with the Department of Labor. Once the LCA is certified, the employer must file an amended H1B petition with the USCIS. Remember, the employee can start working as per the amended petition when USCIS receives the case. The employer has to pay the salary as per the LCA and H1B petition that was submitted to USCIS. Once again, material changes in the terms and conditions of employment, such as the reduction of an H-1B beneficiary’s work from full-time to part-time, would require an amended petition to reflect said changes.

A word of caution to employers transitioning employees from full time to part-time, but still expecting the employee to be available full time. There are significant penalties for employers that do not adhere to H1B wage requirements. There are civil penalties, back wage penalties, debarment from use of the H1B program, and other administrative penalties. These penalties are often initiated by a disgruntled employee and, as such, it is imperative that the employer maintain a fair and equitable workplace and workplace environment.

7. My status is expiring soon, what can I do during the coronavirus outbreak?

We recommend submitting a petition to USCIS to renew or extend your status. Submit as many documents as you can with your petition and indicate in your petition any coronavirus-related challenges you have faced in filing your case. Be prepared for a Request For Evidence (“RFE”) and collect the remaining documents to have them ready to submit with the RFE response.

8. I am a visitor to the US, and unable to return prior to the expiration of my authorized stay due to the coronavirus. What can I do?

We recommend submitting an application to USCIS to extend your B1/B2 status. Please ensure all requirements of the B1/B2 status extension is met, including, proving you continue to maintain a residence abroad, you have the ability to support yourself during the extension period, and the fact that you won’t become a public charge in the U.S.