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 In Employment Based

Salary Reduction:

There is no need for a new LCA or a new I-129 petition provided that the employer was still paying the “required wage” [meaning the higher of the applicable prevailing wage or actual wage].

Any change in the beneficiary’s wage rate must be disclosed in the next H-1B petition filing with USCIS.

Any wage change must be documented in the employer’s LCA public disclosure file and disclosed to USCIS in the next H-1B filing.

Furloughs:

USCIS regulations require employers to pay H-1B workers in periods of mandatory company-wide furloughs.

Unless otherwise prohibited by state law or the employer’s specific policy, employers may require furloughed H-1B workers to use their accrued paid time off.

If the furlough is prolonged, after H-1B workers have used their accrued paid time off, employers are required to pay the regular H-1B salaries through the furlough period.

Layoffs:

The employer may choose to discharge or lay off the employee, in which case the employer must offer to pay for reasonable costs of return transportation abroad for the discharged/laid-off worker.

Unemployment Benefits:

H-1B Visa holders are not eligible to apply for or receive unemployment benefits.

Temporary Unpaid Leave of Absence:

H-1B employees may request an unpaid leave of absence as long as it is for a specific time period (for example 2 months) and it is a benefit that is available to similar company employees.

Employers should document the unpaid leave of absence in writing, have it signed by employer and H-1B employee, and provide a copy to the H-1B employee.

Working from Home:

An H-1B worker can move to a new worksite (ie work from home) within the same area of employment (within normal commuting distance) as long as the terms and conditions of employment remain the same.

The U.S. Department of Labor’s (DOL) Office of Foreign Labor Certification released frequently asked questions on March 20, 2020, regarding its operations during the COVID-19 pandemic.

The DOL stated that if an H-1B worker is moving to a new job location within the same area of intended employment (such as a home office within commuting distance), a new ETA Form 9035 labor condition application (LCA) generally is NOT required.

The employer must provide either electronic or hard-copy notice at the new worksite location(s) for 10 days; in the context of the pandemic, the DOL states that the notice will be considered timely when placed as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite locations.

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