COVID-19 and Important Considerations Relating to Certain Non-Immigrant Workers and Their Employers

Amidst growing concerns stemming from the continued spread of COVID-19, employers have been prompted to consider travel and work location adjustments for their employees. Employees in non-immigrant status are no exception. Most states and many local governments have already issued “stay-at-home” or “shelter-in-place” orders throughout the country. Given the very real possibility that working from home, or even placing workers on temporary paid or unpaid leave, may be necessary or inevitable for many workers, employers should take into consideration a number of immigration issues. This article discusses general issues related to some common non-immigrant categories, including H-1B, L-1 and F-1/OPT. It is important to keep in mind that the guidance below may change depending on new information and directives received from the government agencies. Therefore, it is important to discuss immigration issues related to COVID-19 with immigration counsel on a case-by-case basis.

Can H-1B employees work from home?

H-1B employees may work from home or in a different location in limited circumstances for a limited period of time without the need for the employer to file a new labor condition application (LCA) and amended H-1B Petition. Generally, the United States Citizenship and Immigration Services (USCIS) takes the position that H-1B petitioners are required to file an amended or new petition before placing an H-1B employee at a new place of employment not covered by the existing, approved H-1B petition. However, if the H-1B worker is assigned to work at a new location within the same area of intended employment on the LCA, then no new LCA need be filed; rather, the employer simply needs to post notice at the new location for 10 business days. Because no new LCA needs to be filed in this scenario, the requirement to file an amended H-1B petition is not triggered.

This exception provides some reprieve to employers who may consider allowing employees to work from home at this uncertain time. Provided that the work location is the only change to the terms and conditions of employment, the H-1B employer will not need to file an amended petition with USCIS. Therefore, if an employee is working from a home location within the same area of employment, the employer does not need to file an amendment, but the employee will need to post notice in two places at their home. On March 20, 2020, the U.S. Department of Labor acknowledged that employers affected by the COVID-19 pandemic may experience various service disruptions. Therefore, it announced flexibility in considering a notice timely when placed as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite locations.

For H-1B workers who may reside outside the area of intended employment listed on the LCA, an employer is allowed short-term placement of the employee in that area for no more than 30 workdays in a one year period. If the employee lives in a neighboring state or a considerable distance from the employer’s work location which would be outside of normal commuting distance, then they are allowed to work from home for only 30 workdays in the one year period without the employer having to amend the H-1B Petition for the purposes of a change in location.

What if the H-1B employee is assigned to work at a different office outside the area of intended employment listed on the LCA?

An H-1B employee may also work outside the area of intended employment for up to 60 workdays in a one year period if (1) he or she continues to maintain an office or workstation at the worksite listed on the LCA; (2) the H-1B employee spends a substantial amount of time at the worksite listed on the LCA in a one-year period; and (3) the H-1B employee’s home is in the area of intended employment and not in the area of short-term placement. The latter may be applicable in a situation where the worker actually lives in the metropolitan area listed on the LCA but will perform his/her duties at a short-term placement location perhaps in another state or metropolitan area. The employer should be aware they are required to reimburse the H-1B employee for expenses incurred in traveling to that new location as such expenses are considered to be ordinary business expenses of employers. If this situation persists for more than 60 days, a new LCA will need to be filed, along with an amended H-1B Petition.

How do I provide the required H-1B notice if the work location is closed for business?

On March 20, 2020, the U.S. Department of Labor issued Frequently Asked Questions and provided a response to this question stating that employers are allowed to provide electronic notice of an LCA filing. For electronic notice, employers may use any means ordinarily used to communicate with its employees about job vacancies or promotion opportunities, including its website, electronic newsletter, intranet, or email. If employees are provided individual direct notice, such as by email, notification is only required once and does not have to be provided for 10 consecutive business days.

Can employees in L-1 status exercise the work-from-home option?

L-1 employees have much more flexibility in terms of changes in work locations. If an L-1 employee chooses to work at a different location but the sponsoring corporate entity under which the L-1 was approved remains the same, then notification to USCIS is not needed. For employees granted L-1 status under a blanket L, they can be reassigned to any organization listed in the blanket approval without notifying USCIS if his/her job duties remain the same.

What are some considerations related to F-1/OPT employees working from home or placed on leave?

An employee in F-1/OPT status is generally not required to notify the Designated School Official (DSO) or USCIS if they will be working at another work location but for the same employer. As an F-1/OPT employee, the employee has an obligation to report (1) a legal name change, (2) a change in residential or mailing address, (3) changes in employer, giving the employer name and employer address, and (4) loss of employment. In some situations, changes such as working with reduced hours may need to be reported. Further, if an employee in F-1 STEM OPT status works reduced hours, this could potentially constitute a material change or deviation from the employee’s I-983 Training Plan, requiring specific reporting to the Designated School Official. OPT workers are generally required to work at least 20 hours per week, excluding time off taken consistent with leave-related policies applicable to the employer’s similarly situated U.S. workers in the area of employment.

Do I need to pay an H-1B employee who is on leave?

An employer is generally obligated to pay an employee in cases when the employee is performing services for the employer. This even extends to situations when an employee in H-1B status is unproductive due to lack of assigned work. If the nonproductive status was a result of the employer’s decision or business necessity, the employer must continue to pay the H-1B worker including if an employee’s work is suspended because of COVID-19 related closures or concerns.

However, an employer may not be obligated to pay the employee in situations where the employee has become nonproductive for non-work related factors, such as a voluntary request for leave or circumstances rendering the individual unable to work.[1] In such situations, an employer is not obligated to pay the required wage provided that such period is not subject to payment under the employer’s benefit plan or other statutes, such as the Family Medical Leave Act or the Disabilities Act Amendments Act.[2] It is also notable that the CARES Act guarantees extended paid leave to all employees relating to COVID-19 illness or quarantine.

What if the employer must lay off the worker because of a temporary or permanent lack of work?

Some employment-based visa types have employer obligations related to terminating a worker before his or her employment end date stated in the petition used to obtain the visa. For example, H-1B employers must notify USCIS of the termination and request cancellation of the H petition. In addition, the employer should withdraw the underlying Labor Condition Application certified by the U.S. Department of Labor. Employers of H-1B workers must also offer the reasonable costs of transportation to their home country. Employers are not required to continue to pay non-immigrant H-1B workers if there has been a bona fide termination of the employment relationship which requires the aforementioned notice to the U.S. Government.

Employers of O-1 and L-1 workers do not have reporting obligations. However, O-1 employers are also generally responsible for paying the costs of transportation home in the event that the worker is terminated prior to the petition validity date.

Notably, a worker who is terminated or stops employment prior to the expiration of the work-authorized stay may be considered to have violated their status. The regulations do provide for a grace period of the shorter of the remainder of the petition end date or 60 days in certain situations for non-immigrant workers in E-1, E-2, E-3, H1B, H1B1, L-1, O-1, and TN status, allowing them to file a petition to change employer or extend or change status lawfully during that time.

The regulations also have reporting requirements for employers that terminate their F-1 STEM OPT workers. Employers must report such a change in employment to the appropriate Designated School Official (DSO) no later than five business days after the student’s employment terminates or the student has departed.

As we get through the COVID-19 pandemic, many immigration-related scenarios will arise and require a case-specific analysis to determine the effect of employment actions on foreign national workers and their employers. It will be important for employers and their workers to consult with experienced immigration counsel to determine the potential consequences.

Immigration has always been a fast paced, ever changing area of law and during the COVID-19 emergency, the resulting impacts leading to global travel restrictions; slowed processing times at USCIS with the temporary elimination of premium processing as well suspension of non-emergency services at all U.S. Embassies and U.S. Consulates around the world, makes it even more so. We do expect many more changes as the situation develops further. If you have any immigration related questions, whether it concerns the information in this article or any other immigration issue, our team of Buchanan Immigration Attorneys is an experienced and cohesive group based in Philadelphia, Tampa and Miami that can assist in navigating the U.S. immigration process.

[1] 655.731(c)(7) Wage obligation(s) for H-1B nonimmigrant in nonproductive status.

[2] See id. and 3/9/04 letter from Efren Hernandez, USCIS Business and Trade Branch Chief and Policy Guidance for Student and Exchange Visitor Program and Designated School Officials of SEVP-certified Schools with F-1 Students Eligible for or Pursuing Post-completion Optional Practical Training