As the COVID-19 pandemic continues to cause major changes in the U.S., we have closely tracked its effects on immigration in order to provide employers with accurate updates on how it may affect their workers and any work visa processes. Many employers have been forced to shut down or modify their businesses, and may no longer be able to afford to pay H-1B workers the required wage. In response, we’ve provided interpretations of related regulations below to address common concerns relating to H-1B work visas.
1. Can the employer temporarily suspend employment during the COVID-19 pandemic?
When an H-1B worker is in non-productive status (an employee is unable to work during the validity of the LCA and H-1B petition) due to a decision of the employer such as lack of work, the employer still needs to pay the H-1B worker the required wage. Thus, if the employer decides to temporarily suspend employment, the required wage must still be paid.
On the other hand, an employer is generally not required to pay the required wage to an employee who considered non-productive, which is when the employee voluntarily requests a leave such as holiday leave, maternity leave, etc. Under these circumstances, the employer may still need to pay the required wage if the employee’s leave was subject to payment under the employer’s benefit plan or other statutes such as the Family and Medical Leave Act or the Americans with Disabilities Act.
2. Can the employer temporarily reduce the wage of the H-1B worker?
Generally speaking, an employer must continue to offer the required wage indicated in the LCA and Form I-129 of the H-1B petition and cannot reduce the wage. Arguments can be made to allow an employer to reduce the wage to a point where it is lower than the required wage but still higher than the prevailing wage indicated in the LCA and Form I-129 of the H-1B petition. However, the safest route remains to file an amendment to the H-1B petition if the wage drops below the required wage indicated in LCA and Form I-129 of the H-1B petition.
3. Can the employer reduce the working hours of the H-1B worker?
Yes, though with some conditions as follows. If the reduction of working hours causes a full-time employment to become a part-time, the employer will be required to file an amended H-1B petition. The H-1B worker can start working as a part-time employee upon the filing of the amended H-1B petition. There are circumstances where the H-1B employment was originally for a part-time position, e.g., with 20-35 hours per week. If the reduced work hours are still within the range indicated in the H-1B petition, no amendment is necessary.
4. Do the same regulations apply to other nonimmigrant work visa holders, such as TN, L-1, O-1, E-2, etc.?
There is more flexibility with respect to wage changes for workers in TN, L-1, O-1, E-2 statuses. Workers in these statuses are not subject to a prevailing wage requirement and a salary reduction generally does not constitute a material change that triggers a need to file an amendment. For example, there may not be an adverse impact so long as the L-1 worker is still working under the appropriate L-1 classification as an executive or manager, or as a specialized knowledge employee.
At DeHeng Law Offices, we will continue to monitor any immigration changes and news to ensure that our clients receive up-to-date information on all immigration issues and policies. This newsletter is for informational purpose only. We appreciate your support and are always available to contact should you have any questions or concerns, which you can direct to firstname.lastname@example.org.