Our world is full of acronyms and the two latest ones are COVID-19 (Corona Virus Disease 2019) and WFH (work from home). Needless to say, COVID-19 has disrupted our lives in all aspects and many have shifted either voluntarily or mandatorily to a WFH situation. In the immigration context, not only are there many more acronyms but additional considerations arise for employers as far as how to remain compliant with all the rules.
The first step of the H-1B (specialty occupation), H-1B1 (Singaporean/Chilean specialty occupation), and E-3 (Australian specialty occupation) nonimmigrant/short-term visa programs requires an employer to file an application with the U.S. Department of Labor (DOL). The specific application, the Labor Condition Application (LCA), contains four attestations, one of which is to notify other workers in the same occupation in the same area of intended employment of the filing of the nonimmigrant petition and another of which is the payment of a required wage.
With WFH, employers have been asking how they can properly comply with the notification process. DOL issued a Frequently Asked Questions (FAQ) on Friday, March 20, 2020 which reminds employers that they may use electronic means to comply with the requirements. DOL also took the opportunity to provide employers with extensions up to May 12, 2020 to respond to ongoing deadlines with their different programs if the original deadline fell between March 13, 2020 and May 12, 2020.
Given the fact that a lot of businesses cannot operate as usual, employers also have questions concerning layoffs, terminations, and payment of wages. The H-1B rules indicate that an employer must continue paying the employee regardless of whether there is work. No specific guidance has been provided just yet allowing for any special dispensation.
Further, if the employer terminates the employee before the end of the visa petition period, the rules require an employer to pay for reasonable return transportation costs. The employee’s status also ends, with a short grace-period of no more than the shorter of 60 days or the end of the visa petition period. If you find yourself in this situation, be sure to contact competent counsel to ensure compliance and to find answers to these and other related questions.
COVID-19 and WFH and many other related fact patterns are raising novel issues and challenges for employers. Stay tuned as we learn more.
From the Office of Foreign Labor Certification, U.S. Department of Labor:
From the Wage and Hour Division, U.S. Department of Labor:
The above has been provided for informational purposes only and does not constitute legal advice. Please contact your Clark Lau LLC attorney or competent immigration counsel for guidance specific to your situation.