Companies across the U.S. are facing tough decisions as they pare down business and workers during the coronavirus pandemic, and those that employ high-skilled guestworkers face even fewer options if they want to keep those employees.
The H-1B program is one of only a few employment visa programs that requires approval of a labor certification application (LCA) from the Labor Department, and where wages are more strictly regulated. Those requirements mean that an employer of H-1B workers, E-3 professional workers from Australia, or H-1B1 specialty occupation workers from Chile and Singapore can’t reduce wages via a furlough or other option.
“Employers are required to pay H-1B workers the wage offered on the LCA, and that includes having to pay them for any nonproductive periods,” said Marketa Lindt, partner at Sidley Austin LLP’s labor, employment and immigration practice in Chicago.
“Obviously we’re in a different environment, but the regulations are the regulations,” said Lindt, who also serves as president of the American Immigration Lawyers Association.
States increasingly are implementing stricter parameters on business operations as they seek to keep people at home to slow the spread of the novel coronavirus. Over 3.2 million people filed for unemployment insurance in the week ended March 21, four times the previous record.
One of the only options available to employers with H-1B workers who want to retain those workers but also need to reduce their pay is to re-file an amended labor certification application and visa petition to change the guestworker’s status from full time to part time, said New York immigration attorney Cyrus Mehta. “This would be the safest way to reduce wages.”
Employers also could reduce wages in the short term with a promised bonus before the end of the year to make up the difference, “but this is riskier,” Mehta said.
This isn’t the first time employers of guestworkers have faced a disaster that halts business. Similar workforce disruptions occurred during Hurricane Sandy and the terrorist attacks in September 2001, Mehta said.
If H-1B workers are terminated, they get a 60-day grace period to remain in the country until they leave or they find another employer or change to another visa status. In the past when H-1B workers have lost their jobs, many have tried to change their status, such as going back to school, Mehta said.
Alternative visa categories for specialty occupations, such as L-1 intracompany transferees or TN trade visa classifications for Mexican and Canadian workers, don’t have the same DOL involvement in the visa process or in the regulatory process, Lindt said.
But many workers in the U.S. on H-1B, L, and TN visas will have upcoming expiration dates during the year, and at a time when filing for extensions is also difficult under shelter-at-home orders, the government hasn’t yet indicated whether it will provide an accommodation or any kind of grace period, she said.
Thus far, U.S. Citizenship and Immigration Services, the agency in charge of administering these employment visas, has announced some flexibility in response to the pandemic. It has relaxed original-signature requirements on visa petitions to help attorneys and clients remain isolated to reduce risk of infection, and the agency has given employers an additional 60 days to respond to requests for evidence and notices of intent to deny on visa petitions.
“These are small measures that are welcome, but they don’t go far enough,” Mehta said.