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COVID-19 and the Special Impact on Employers of Foreign Workers – Special Rules for H-1B, H-1B1 and E-3 Employers

In response to the COVID-19 pandemic, many government authorities in the US and around the world issued shelter-in place orders in an attempt to protect public health and slow the spread of Coronavirus. In the US, employees in jobs listed as non-essential are ordered to work from home. As a result of the economic downturn, employers are evaluating business operations, including the options and consequences of termination, furlough, and reductions in pay and or hours. 

Employers of foreign workers often have additional legal obligations that must be considered before taking such action. In particular, employers of foreign professionals on H-1B, H-1B1 and E-3 specialty occupation worker visas have additional obligations and liabilities under US immigration law that must be considered, in addition to the other legal requirements under relevant state and federal employment law. 

Labor Condition Application

These employers are bound by attestations that the employer was required to make on the Labor Condition Application (LCA) filed with the visa petition, pursuant to  Department of Labor (DOL) regulations. The COVID-19 pandemic may impact the ability of employers to fulfill these obligations.  DOL recently issued additional guidance for scenarios likely to occur during this challenging time. 

Obligation to continue to pay the offered wage indicated in the LCA

DOL regulations require employers to pay the wage promised in the LCA with only limited exceptions.

The employer remains liable to pay even during nonproductive time caused by conditions related to employment, such as lack of work. When an employee is in a nonproductive state due to a decision made by the employer, the employer’s obligation to pay continues. 

However, no payment is required if the nonproductive time is caused by reasons unrelated to employment, such as a worker’s voluntary absence from work or a hospitalization. 

Note that the employer must still pay the required wage if the employee’s nonproductive period was subject to payment under the employer’s benefit plan, or state or federal law, such as the Family and Medical Leave Act or the Americans with Disabilities Act. 

When does the obligation to pay start?

The duty to pay is the earlier of:

  • The date the employee is first available for work or otherwise comes under the control of the employer, such as reporting for orientation or studying for a licensing exam;
  • No later than thirty (30) days after the worker is first admitted into the U.S. pursuant to the H-1B petition, whether or not employment otherwise commences; and
  • For a worker already in the United States, generally no later than sixty (60) days after the date the worker becomes eligible to work for the employer (usually the petition validity start date printed on the USCIS Notice of Action Form I-797 for a change of status or change of employer petition), whether or not employment commences.

How much pay is due and for how many hours?

The employer must pay full-time workers the full amount of the wages stated on the LCA.

If the LCA indicated that the job is part-time, the employer must pay for at least the number of hours indicated on the visa petition and the LCA. If the LCA and visa petition state a range of hours, then the amount paid must be for the hours actually worked, so long as the employer pays for no fewer than the minimum number of hours indicated for the range of part-time employment. 

When does duty to pay stop?

The obligation to pay stops when there is a bona fide termination of employment or one of the exceptions mentioned earlier applies. 

Note that bona fide termination under the immigration law differs from the federal and state employment law.  DOL regulations require the employer to notify the USCIS that:

  • The employment is terminated;
  • The petition should be withdrawn; and
  • The employee was offered payment for transportation home, if the termination occurs before the worker’s H-1B expiration date. 

The duty to pay continues even during a COVID-19 shelter-in-place order

The employer’s obligation to pay continues even during a COVID-19 shelter-in-place/quarantine order,  because these conditions are considered to have been caused by reasons unrelated to employment and the employee is otherwise able to work.  

Therefore, employers cannot furlough, bench, or otherwise render an H-1B, H-1B1 or E-3 employee who is nonproductive, and cannot stop paying the required wage, merely because an employee is unable to perform their work from home due to a COVID-19 – related order. 

Violation of this DOL rule exposes the employer to fines, back wage with interest and, in the most egregious cases, ineligibility to sponsor foreign workers for visas through the DOL’s temporary and permanent immigration programs for a period of time. In addition, the USCIS would withhold approval of immigrant and non-immigrant petitions filed by that employer. 

The duty to pay when an employee is afflicted with COVID-19 and consequently unable to work due to isolation and quarantine

The regulations do not require an employer to pay the required wage if an employee becomes nonproductive due to a reason which is not directly work-related and required by the employer, such as a worker’s voluntary absence from work or a hospitalization. 

That said, if an employer has policies in place requiring  an employee who has tested positive for COVID-19 to remain in quarantine, arguments may be made that the employer must continue to pay the employee because the quarantine rule was created and imposed by the employer.

An employer should be aware that it could be subject to required payment under the employer’s benefit plan or other statutes such as the Family and Medical Leave Act or the Americans with Disabilities Act.

Furthermore, this is an evolving situation.  New statutes, regulations and agency guidance is anticipated. Even more than usual, employers should consult with legal counsel regarding employers’ obligations during this national emergency.

Reductions in Pay

Employers seeking to reduce compensation may file a new LCA with the DOL and visa petition amendment or extension with the USCIS stating the new wage offer.

Note that the wage offer must still be at least the higher of the prevailing wage paid to similarly employed workers in the same geographic area or similar employed workers of the employer. 

The lower wage may start after the USCIS receives the visa petition. There is no requirement to wait for agency approval.

Converting a job from full-time to part-time

Employers seeking to convert a job from full-time to part-time must file a new LCA and a petition amendment or extension. The change may commence after the petition is received by the USCIS. 

Changes in work location / working at home

In response to shelter-in-place or similar provisions arising from the COVID-19 pandemic, many employers have employees working from home. Unless that new job site was included on the original LCA, DOL rules govern what action is required.

DOL regulations require employers to post notice of the LCA filing at the job site in two clearly conspicuous locations for 10 days, regardless of whether a new LCA was filed. Though the regulations do not provide specific exceptions for home worksites, during a 2017 American Immigration Lawyers Association’s Liaison meeting with the DOL’s Wage and Hour Division, the DOL indicated that the agency would not expect employees to post at their home residences. If the worker will be working at home in a geographical area of employment that is not covered by the LCA, the employer can post at its headquarter. 

Employers who have closed their offices due to the COVID-19 may not be able to physically post the notice at the headquarter office. In that case, employers may opt for electronic notification. DOL regulations provide that an employer may accomplish electronic notice by any means it ordinarily uses to communicate with its workers about job vacancies or promotion opportunities. For example, the employer can post the notice on an internal “home page” or “electronic bulletin board.” 

DOL regulations also state that the posting is required on or before work at the new site begins. In response to COVID-19, the DOL relaxed this requirement and issued guidance stating that employers are in compliance if the posting is done within 30 days after work at the new site begins. 

No new LCA if the new job site is in the same geographic area

If the new job site/home office is within the normal commuting distance of the job site listed on the approved LCA, no new LCA is required.    

The DOL has not clearly identified how many miles is considered the normal commuting distance. If the new job location is within a Metropolitan Statistical Area (MSA) or a Primary Metropolitan Statistical Area (PMSA), any place within the MSA or PMSA is deemed to be within normal commuting distance of the place of employment. The borders of MSAs and PMSAs are not definitive measures. If the new job site is within 50 miles, that is likely to qualify. 

No new LCA required for short-term placement

DOL regulations also state that a new LCA is not required for short-term placement at the new job site. 

This rule applies to H-1B only.  To qualify, the employer must first meet the following conditions:

  • must fully satisfy the other requirements to which it agreed upon on the approved LCA;
  • shall not place, assign, lease, or otherwise contract out any H-1B workers to any worksite where there is a strike or lockout in the course of a labor dispute in the same occupational classification(s) as that of the H-1B worker;
  • must continue to pay the required wage, the actual cost of lodging, and the actual cost of travel, meals and incidental or miscellaneous expenses for the duration of the assignment. 

The DOL identifies 30 workdays or less in a one-year period as short-term. 

Sixty workdays or less in a one-year period is considered by the DOL to qualify as short-term only if all of the following conditions are met. The employee must:

  • continue to maintain an office or work station at the previously approved permanent worksite (e.g., the worker has a dedicated workstation and telephone line(s) at the permanent worksite);
  • spend a substantial amount of time at the permanent worksite in a one-year period; and
  • maintain a residence located in the area of the permanent worksite and not in the area of the short-term worksite(s) (e.g., the worker’s personal mailing address; the worker’s lease for an apartment or other home; the worker’s bank accounts; the worker’s automobile driver’s license; the residence of the worker’s dependents).

The short-term placement rule does not apply for worksites for which the employer has a certified LCA for the occupational classification. In other words, if the employer has a certified LCA for a worksite, it must follow the proper rules to post notice. 

The DOL regulations did not contemplate a home office as a short-term placement. In any event, employers may well need to have employees working from home for well more than 60 days. Once any H-1B worker’s short-term placement has reached the time limit as stated above, the employer should take one of the following actions, if applicable:

  • File an new LCA for the new worksite and an amended H-1B petition; or
  • Immediately terminate the placement of the H-1B worker and revert to the permanent worksite as indicated on the approved LCA. 

Keep in touch

These are difficult times and government rules are reasonably expected to evolve, but not always as fast or in the ways expected. Dentons makes available to clients a large number of COVID-19 related resources regarding laws and regulations around the world. 

Please contact your Dentons lawyer for further assistance.

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COVID-19 and the Special Impact on Employers of Foreign Workers – Special Rules for H-1B, H-1B1 and E-3 Employers

Supreme Court allows travel ban

The US Supreme Court partially lifted preliminary injunctions that had blocked President Trump’s revised executive order suspending US entry by foreign nationals from six, rather than the previous seven, mostly Muslim countries. However, the Court carved out an exception for foreign nationals who have a “bona fide relationship” with a person or entity in the United States,” raising such questions as “What is a bona fide relationship?” and “What is an entity in the US?” that will likely be the subject of further court action.

Supreme Court allows travel ban

The US Supreme Court partially lifted preliminary injunctions that had blocked Executive Order No. 13780, signed by President Donald J. Trump in March 2017 (EO-2), banning travel to the US for citizens of six countries. The Supreme Court scheduled a full hearing of the case for October 2017.

“Bona fide relationship” exception

The Supreme Court found that the preliminary injunction shall remain in place and the travel ban will not impact foreign nationals who have a “bona fide relationship with a person or entity in the United States.” Further, refugees will continue to be allowed to enter the US, subject to the 50,000 person cap on refugee admissions, except that the cap cannot be used as a means to bar an individual with a bona fide relationship with the US.

The Supreme Court defined “bona fide relationship” as either (with respect to individuals) “a close familial relationship” or (with respect to entities), a relationship that is “formal, documented, and formed in the ordinary course.” What constitutes a sufficiently close familial relationship is likely to be the subject of further court action.

As for what constitutes a sufficiently established relationship with an entity, the Supreme Court provided three examples:

  • Students admitted to attend university in the US
  • Workers who have accepted an offer of employment from a US company
  • Lecturers invited to the US for a speaking engagement

The travel ban will apply to individuals whose relationship with an entity was formed to purposefully circumvent the ban.

It is worth noting that EO-2 in its original form applies only to the new issuance of visas, and not the US entry of individuals who have already been issued visas, green cards or asylum/refugee status.

Also, there is a chance that the Supreme Court will not have to hear the case in its entirety in October. If EO-2 goes into effect as scheduled by the Trump administration, the 90 day temporary ban will conclude at the end of September, several days before the Supreme Court begins its term. This would, then, remove any controversy over the legality of that piece of the order.

Citizens from these countries impacted

Citizens from the following countries are detrimentally impacted:

  • Iran
  • Libya
  • Somalia
  • Sudan
  • Syria
  • Yemen

EO-2 does not apply to citizens of other countries who merely visited the listed countries. Further, it does not apply to citizens of these six countries who are dual citizens and use the passport of a non-affected country to apply for a visa and enter the US.

When does the ban start?

In a June 14 memorandum, President Trump directed the Department of Homeland Security (DHS), the Department of State and other relevant agencies to wait 72 hours from the release of the Supreme Court decision before banning refugees and travelers from the six affected countries to “ensure an orderly and proper implementation” of the changes.

Background

During his first six months in office, President Trump signed two travel ban executive orders. The first, Executive Order 13797 (EO-1), issued on January 27, 2017, took a number of steps, including:

  • Suspending for 90 days the entry of foreign nationals from seven mostly Muslim countries identified as presenting heightened concerns about terrorism and travel in the US [1]
  • Suspending for 120 days the United States Refugee Admissions Program (USRAP), during which an adequacy review is to be undertaken
  • Reducing to 50,000 per year the total number of refugees that could be admitted to the United States, starting in fiscal year 2017
  • Suspending indefinitely admission of refugees from Syria

EO-1 was quickly blocked  by the US District Court for the Western District of Washington, which issued a nationwide temporary restraining order. The US Court of Appeals for the Ninth Circuit denied an emergency motion by the US government to stay the district court order pending appeal. In response, the government rescinded EO-1 and went back to the drawing board.

On March 6, 2017, President Trump signed EO-2, which closely mirrored the directives in EO-1, but was intended to correct some its perceived errors, including:

  • Reducing the reach of the 90-day temporary suspension of entry to foreign nationals from six (rather than seven) mostly Muslim countries, with Iraq no longer included [2] and with a case-by-case waiver of the entry bar.
  • Directing the Secretary of DHS to undertake a 20-day global review of whether foreign governments provide sufficient information about nationals applying for visas.

EO-2 was immediately challenged in court, which challenges led to prompt nationwide preliminary injunctions by the US District Court for the District of Maryland and (as stated above) the Western District of Washington, which were then appealed to the US Courts of Appeal for the Fourth and Ninth Circuits, respectively.

The Fourth Circuit concluded that the EO-2 ban on entry from the six named countries was primarily motivated by religious considerations and, as such, violated the First Amendment. In that case, the preliminary injunction only applied to the suspension of entry of foreign nationals from particular countries. The 120-day ban on USRAP and the quota on total refugee immigration would still be in force.

The Ninth Circuit, meanwhile, found that EO-2 exceeded the president’s authority under the Immigration and Nationality Act (INA) and, on that basis, upheld the injunction with regard to the entirety of EO-2.

The federal government appealed both decision to the Supreme Court, certiorari was granted, and the two cases were consolidated and oral argument scheduled for October Term 2017. The Supreme Court, meanwhile, heard the government’s application to stay the aforementioned injunctions.

Dentons will continue to issue further information as it becomes available.

[1] Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen

[2] Iran, Libya, Somalia, Sudan, Syria and Yemen

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Supreme Court allows travel ban

Criminal record check for Tier 2 UK migrants

From April 6, 2017, individuals applying to come to the UK to undertake certain jobs will be subject, along with any adult dependants (over the age of 18 years old) applying with the main applicant, to the requirement under the Immigration Rules to produce a criminal record certificate. The certificate must be produced from any country in which the applicant has been resident for 12 months or more, consecutively or cumulatively, in the previous 10 years.

Effective January 1, 2017, sponsors must inform prospective employees at the point they assign their Certificate of Sponsorship (CoS) that they may become subject to this requirement by the time they make their application. This will enable them to begin seeking certificates where needed at the earliest opportunity, and to lodge a complete application for entry clearance sooner.

Affected job titles are:

  • Dental practitioners
  • Education advisers and school inspectors
  • Further education teaching professionals
  • Health professionals not elsewhere classified
  • Health services and public health managers and directors
  • Medical practitioners
  • Medical radiographers
  • Midwives
  • Nurses
  • Occupational therapists
  • Ophthalmic opticians
  • Pharmacists
  • Physiotherapists
  • Podiatrists
  • Primary and nursery education teaching professionals
  • Probation officers
  • Psychologists
  • Secondary education teaching professionals
  • Senior professionals of educational establishments
  • Social services managers and directors
  • Social workers
  • Speech and language therapists
  • Teaching and other educational professionals not elsewhere classified including Special needs education teaching professionals
  • Therapy professionals not elsewhere classified
  • Welfare professionals not elsewhere classified

The requirement to produce a criminal record certificate already applies to those applying under Tier 1 (entrepreneur) or Tier 1 (investor) and any adult dependant relative of the main applicant in either of these categories.

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Criminal record check for Tier 2 UK migrants

Global Employment Lawyer – Volume 2, Issue 2 – Fall 2016

Brand-36-Global-Employment-Blog-Banner
What Happens If You Really “Break A Leg!?”

According to the Cambridge Idioms Dictionary, “Break a leg!” is something you say to wish someone good luck, especially before they perform in the theatre. Although there are many theories, the derivation of this term is unclear. The expression reflects a theatrical superstition that wishing a person “good luck” is actually considered bad luck. But is it really bad luck if you “break a leg?”

In this month’s edition, we feature articles from eight different countries Australia, Canada, China, France, Germany, Israel, UK and US. As always, we thank you for you readership.

Read the complete issue

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Global Employment Lawyer – Volume 2, Issue 2 – Fall 2016

Disclosing bribery conduct not an easy decision for US companies

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July 8, 2016

Recent non-prosecution agreements between the US Securities and Exchange Commission and two companies—Akamai Technologies, Inc. and Nortek, Inc.—in matters involving FCPA books and records violations stemming from conduct that occurred in China, coupled with corresponding decisions by the US Department of Justice to close its investigations into these two matters, provide some limited insight into how to secure similar resolutions of future investigations. However, the questions that remain regarding the benefits of voluntary disclosure of an organization’s misconduct leave things clear as mud.

Should a US company faced with evidence of bribery by an employee or other agent self report in this post-Yates Memorandum/post-FCPA Pilot Program era? Read more in this client alert by Dentons white collar partners Stephen L. Hill, Michelle J. Shapiro and Brian O’Bleness.

Click to read complete article.

 

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Disclosing bribery conduct not an easy decision for US companies

Dentons Employment and Labor seminar series

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Managing employment challenges internationally

Dentons’ global Employment and Labor group would like to invite you to our global seminar on Tuesday, June 30, 2015, hosted by our London office. Our international panel, moderated by partners Michael Bronstein (London) and Brian Cousin (New York), will cover employment law issues across a range of jurisdictions.

Our global panel will discuss:

  • Global employment law – traps for the unwary entering new markets Highlighting key issues for employers, covering:
    • US, by Sandy McCandless
    • Canada, by Lindsay Mullen
    • France, by Katell Déniel-Allioux
    • Germany, by Isabelle Moog
    • Poland, by Aleksandra Minkowicz-Flanek
    • A particular focus on China, by Anderson Zhang (大成)
  • Whistleblowing in the global workplace Examining common themes and best practices internationally:
    • UK, by Ryan Carthew
    • US, by Neil Capobianco
    • Canada, by Jillian Frank
    • France, by Katell Déniel-Allioux
    • Poland, by Aleksandra Minkowicz-Flanek.

The panel discussion will be followed by a cocktail reception.

For those unable to attend, we will be streaming a live webinar to clients and contacts in all jurisdictions.

Event schedule

4 p.m. BST Registration
4:30–6:00 p.m. BST Global employment law – traps for the unwary entering new markets Our panel will highlight key issues for employers, covering the US, Canada and various countries in Europe, as well as a particular focus on China.
6–6:15 p.m. BST Networking break
6:15–7:30 p.m. BST Whistleblowing in the global workplace – policy and practice for employers Our panel will examine common themes and best practices internationally.
7:30–8:30 p.m. BST Cocktail reception

We hope you will be able to attend.

This seminar carries 2.5 UK continuing professional development (CPD) points.

Register Now

Dentons Employment and Labor seminar series

Global Mobility Guide

 

Global Mobility Guide

We are so pleased to bring you the Dentons Global Mobility Guide 2015.

The ability to move skilled workers globally is essential to the success of the world economy and the companies that drive it.

“Global mobility” minimizes the risks for doing business internationally by providing the legal framework to identify and analyze business problems, and develop and implement creative solutions. Getting it right means getting people to the right place at the right time with the right advice.

The laws impacting global mobility are dynamic. Multinational employers need to know the existing laws and the evolving legal trends to compete in an international market where business transcends borders. Dentons professionals can provide that.

Our Global Mobility practice helps multinational employers navigate the local laws of the countries where they do business, with lawyers speaking the local language in more than 75 locations around the world, well-versed in all of the intertwined issues: immigration, employment, compensation, employee benefits, taxation and social insurance.

Dentons’ network of offices and qualified staff around the world provides you with experienced legal resources—wherever and whenever you need us.

Read the complete report

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Global Mobility Guide