H-1B Employer Responsibilities for H-1B Employee Termination, Layoff or Reduction of Hours
This memorandum is to inform an employer of an H-1B nonimmigrant worker of its legal responsibilities in the case a material change to the terms and conditions of the H-1B visa worker’s employment. Particularly discussed is what the H-1B employer’s responsibilities are in the following situations:
1. Termination of the H-1B worker‘s position;
2. Temporary lay-off of the H-1B worker; and
3. Reduction of the H-1B worker’s hours from full-time to part-time employee.
All three scenarios are considered material changes to the terms and conditions of H-1B visa which require different employer action. Finally, potential penalties and sanctions for non-compliance with LCA or H-1B attestations will be discussed.
Background
The Immigration and Nationality Act (INA) applies to employers seeking to hire nonimmigrant aliens as workers in specialty occupations (generally those requiring a bachelor's degree or its equivalent), using the H-1B nonimmigrant visa classification. To obtain H-1B or H-1B1 status approval, the employer must first file a Labor Condition Application (LCA), Form ETA 9035 or Form ETA 9035E, with the Department of Labor (DOL).
Within the LCA, the employer attests that it will:
Pay the nonimmigrant workers at least the local prevailing wage or the employer's actual wage, whichever is higher; pay for non-productive time in certain circumstances; and offer benefits on the same basis as
for U.S. workers;
Provide working conditions for H-1Bworkers that will not adversely affect the working conditions of workers similarly employed;
Not employ an H-1B worker at a location where a strike or lockout in the occupational classification is occurring, and notify ETA of any future strike or lockout; and
On or within 30 days before the date the LCA is filed with ETA, provide notice of the employer's intent to hire H-1B workers by providing notice to the bargaining representative of workers in the occupation in which the H-1B worker will be employed. If there is no bargaining representative, the employer must post such notices in conspicuous locations at the intended place(s) of employment, or provide them electronically.
The DOL administers INA related matters through the Office of Foreign Labor Certification (OFLC) of the Employment and Training Administration (ETA). Also, pursuant to 8 C.F.R. §214.2(h)(11)(i)(A), an H-1B employer must notify the U.S. Citizenship & Immigration Services (USCIS) of any “material changes to the terms and conditions of an approved H-1b petition without delay.”
Therefore, three scenarios which are considered material changes to the terms and conditions of H-1B visa are examined:
1. Termination of the H-1B worker‘s position;
2. Temporary lay-off the H-1B worker; and
3. Reduction of the H-1B worker’s hours from full-time to part-time employee.
Finally, potential penalties and sanctions for non-compliance with LCA or H-1B attestations are discussed.
Employer Responsibilities for “Terminating” an H-1B Employee. When an H-1B employee is terminated (ie, employment or the position ceases) during the validity period of the H-1b visa and the LCA, USCIS regulations require the employer to inform the USCIS via letter of the termination of the employment relationship “without delay.” Additionally, the H-1B employer is liable for the reasonable costs of return transportation of the foreign national abroad if the employer dismisses the foreign national before the end of the period of authorized stay.
Employer Responsibilities for Temporarily Laying-Off or “Benching” an H-1B Employee. Where an employer must temporarily “lay-off” or “bench,” an H-1B employee the employer must continue to pay the salary and wages pursuant to the terms contained in the certified LCA and the approved H-1B visa for the period indicated. The employer must pay for non-productive time caused by the employer (as opposed to a period of unemployment or non-productive time caused by the employee, such as for vacation or for elective medical procedures). The H-1B employer therefore cannot simply pay a reduced salary or cease to pay the salary completely without being subject to paying fines and being penalized in other ways for violating the terms of the H-1B visa (please see section 4 below). In this case the employer has two options: to terminate the H-1B employee; or, as discussed more fully below, to decide to reduce that employee’s hours (requiring the employer to file an amended H-1b and LCA prior to reducing the hours to inform the USCIS).
Employer Responsibilities for Reducing Work-Hours from Full-Time to Part-Time. An H-1B employer who wishes to reduce the work-hour of an existing full-time H-1B worker must file an amending H-1B petition on Form I-129 with a new Labor Condition Application reflecting the reduction from full-time work to part-time work (i.e. From 40 hours to 20 hours per week). A reduction of work-hours is considered a “material change to the terms and conditions of an H-1B visa worker’s employment,” and therefore , pursuant to 8 C.F.R. §214.2(h)(11)(i)(A), USCIS must be informed of the changes without delay. The amended H-1B petition and LCA must be filed prior to the reduction in work-hours taking place.
Potential Penalties and Sanctions for Non-Compliance with LCA/H-1B Conditions. When LCA violations are found, the Administrator of the Wage and Hour Division of the Department of Labor may assess civil money penalties with maximums ranging from $1,000 to $35,000 per violation, depending on the type and severity of the violation. The Administrator may also impose other remedies, including payment of back wages. Employers found to have committed certain violations may also be precluded from future access to the H-1B program as well as to other nonimmigrant and immigrant programs for a period of at least one year and as much as three years depending on the nature of the violation. If however an H-1B employer has made a good-faith attempt to comply with the regulations, the employer will be considered to be in compliance despite having some “technical or procedural failures.” Compliance will be found in cases where the H-1B employer demonstrates its good faith by correcting violations within 10 business days of being advised by an enforcement authority; by not engaging in a pattern or practice of willful violations; and by establishing that its prevailing wage calculations are consistent with recognized industry standards and practices.
This memo may provide some useful guidance in the situation where an H-1B employer finds itself in one of the three situations discussed above as all are considered “material changes to the terms and conditions of an H-1B visa worker’s employment.” An employer which attempts in good faith to comply with its attestations will continue to enjoy the benefits of hiring specialty occupation workers using the H-1B nonimmigrant visa classification while an employer which does not can be fined or have its ability to seek H-1B workers curtailed.
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