The current public health and economic climate has caused employers in all industries to make operational changes and to consider a variety of budget reduction initiatives. These have included layoffs, temporary furloughs, salary reductions, and reduced work schedules. Employers are cautioned to consult with immigration counsel before taking such actions with respect to foreign nationals employed in H-1B and E-3 (Australian) specialty occupations. Below is a summary of the points to be considered for H-1B and E-3 workers.
"No Benching" Rule Generally Applicable to H-1B and E-3 Professionals
When an employer sponsors an H-1B or E-3 specialty occupation professional, it files a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL). In the LCA, the employer certifies that it will pay the professional at or above a required wage. The employer also attests that it will pay the H 1B or E-3 nonimmigrant the required wage for time in nonproductive status due to a decision of the employer.
As a result, temporary layoffs or furloughs are generally not permissible for H-1B and E-3 professionals. The practice of “benching” H-1B or E-3 professionals by placing them in a nonproductive, unpaid status can subject employers to substantial penalties, including back-wage payments, fines, and debarment from the H-1B program. Only when there has been a bona fide termination of employment, along with required DOL and USCIS notifications, is the employer relieved from paying the required rate.
Requirements for a Bona Fide Termination of H-1B and E-3 Professionals
If an employer terminates the employment of an H-1B or E-3 professional and provides appropriate agency notice, it no longer has an obligation to pay the employee the required wage. However, the employer is liable for the reasonable costs of return transportation if the employee is terminated involuntarily before the conclusion of the authorized period of admission in H-1B or E-3 status.
Following termination, an H-1B or E-3 professional has a grace period of up to 60 days (or less if the H-1B or E-3 petition expires sooner) to seek H-1B sponsorship with another employer, apply to change to another status, or depart the U.S. with their reasonable costs paid by the employer.
Inability to Work Caused by Government COVID-19 Pandemic Orders
Many jurisdictions have imposed shelter-in-place or stay-at-home orders, which may prevent certain H-1B and E-3 professionals from carrying out their duties. Employers who are contemplating not paying such employees during their unproductive time are advised to first discuss their plans with their immigration attorney, who will help evaluate the scope of the government orders and the risk of not paying the petition wage.
Other Changes to Hours, Scope of Work, Work Location, and Pay
The LCA filed with DOL sets forth the terms of the proposed employment of the H-1B or E-3 professional. Employers should work with their immigration attorney before making changes to the work location, hours worked, wage rate, and scope of duties for these employees. Certain material changes will require the filing of an amended H-1B petition or posting before the change can take effect. An immigration attorney will help you to evaluate options, take necessary action, and assess risks and costs.
Because of the complexity of and time sensitive nature of these requirements, employers sponsoring foreign nationals in H-1B or E-3 specialty occupation professional status should contact their immigration lawyer before making any changes that will affect the work location, hours, pay rate, or scope of work for these employees.
* The standards applicable to H-1B Specialty Occupation Professionals also generally apply to the employment of E-3 Specialty Occupation Professionals from Australia.