COVID-19 benching: H-1Bs can’t sit this one out

McAfee & Taft

McAfee & Taft

The ongoing COVID-19 pandemic continues to complicate how employers approach temporary layoffs and furloughs spawned by lost revenues and reduced demands for services. As if navigating the employment-based immigration laws weren’t complicated enough, now employers must balance implementing cost-saving measures with their federal obligations to employer-sponsored migrant workers.

Let me explain: As a cost-saving measure, a company advises its employees that each employee is required to take a certain number of unpaid hours or days off, every week or every month, through the end of this year. If the company employs H-1B workers, this measure potentially runs afoul of the federal laws governing the H-1B worker’s conditions for employment. In the immigration world, this is referred to as “benching.”

The prohibition on benching is hardly a novel concept. However, the prolonged pandemic brings the anti-benching regulations into focus as employers grapple with cost-saving measures. The Labor Conditions Application prescribes the H-1B employee’s wages, payment frequency, and employment status and certifies the employer will pay the employee for “nonproductive time.” The regulations define “nonproductive time” as time an employee is not performing work and is in a nonproductive status “due to a decision by the employer.” Regulatory examples include lack of assigned work and lack of permit or license. However, if the employee is in a nonproductive status unrelated to their employment – e.g., vacation, family medical leave, or conditions that render the employee temporarily incapacitated – an employer is not obligated to pay the employee for the nonproductive time if the employer does not provide that benefit to other employees.

The looming question: Will the regulating agencies attribute temporary layoffs and flayofflayoffs due to the pandemic or governmental decrees affecting work flow as a “decision by the employer” or a condition unrelated to employment?

In implementing cost-saving measures, an employer must be mindful of its federal obligations. A material and substantive change to the H-1B worker’s conditions of employment may cost the employer thousands in civil penalties, back wages, and suspension from the H-1B visa program. Employers have several options to legally implement their cost-saving measures as it relates to H-1B workers. To fully understand your obligations and ensure your actions conform to the laws, contact your immigration lawyer.

A final note: The H-1B visa is an effective vehicle to recruit talented foreign nationals and, with the employer’s assistance, paves the way to permanently retain talented individuals in the United States.

This article appeared in the April 29, 2021, issue of The Journal Record. It is reproduced with permission from the publisher. © The Journal Record Publishing Co.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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