Posts Tagged ‘covid-19’

COVID-19 Vaccination Requirement for Immigration Medical Exam

September 30, 2021 Leave a comment

USCIS announced that effective Oct. 1, 2021, applicants subject to the immigration medical examination must be fully vaccinated against COVID-19 before the civil surgeon can complete an immigration medical examination and sign Form I-693, Report of Medical Examination and Vaccination Record.

The COVID vaccine requirement applies prospectively to all Forms I-693 signed by the civil surgeons on or after October 1, 2021. USCIS is working on updating Form I-693 and the form instructions to incorporate this new requirement. USCIS may grant blanket waivers if the COVID-19 vaccine is:

  • Not age-appropriate;
  • Contraindicated due to a medical condition;
  • Not routinely available where the civil surgeon practices; or
  • Limited in supply and would cause significant delay for the applicant to receive the vaccination.

H-1B Workers – Unintended Remote Worksites/Work From Home; Wage Issues

May 8, 2020 Leave a comment

H-1B Workers – Unintended Remote Worksite/Work From Home

Our March 26, 2020 blog post addressed various issues surrounding COVID-19 and immigration.  Pursuant to that blog post, we are addressing the issue of remote worksites.

Working from Home/Telecommuting: In the current “Shelter-in-Place” or “Stay-at-Home” climate in most states due to COVID-19, it is quite possible that employees are having to work from remote worksites/home and this includes H-1B workers as well.  Per the Dept. of Labor regulations pertaining to H-1B visa holders, H-1B employees are typically allowed to move to a new worksite within the same area of intended employment, i.e. normal commuting distance assuming all other terms and conditions of such H-1B employment remain the same.

In its recent COVID-19 FAQs (Round 1) issued on March 20, 2020, the Dept. of Labor has reiterated/confirmed that if an H-1B employee is simply moving to a new worksite(s) within the area of intended employment, a new LCA is not generally required. Therefore, provided that there are no changes in the terms and conditions of employment that may affect the validity of the existing LCA, employers do not need to file a new LCA. Employers with an approved LCA may move H-1B workers to other worksite(s), which were unintended at the time of filing the LCA or H-1B petition, without having a need to file a new LCA provided that the worksite(s) are within the same area of intended employment covered by the approved LCA.

What is considered the “Area of Intended Employment”: The area of intended employment is the area within normal commuting distance to the place of employment; there is no rigid measure of distance for “normal commuting distance.” Generally, if an H-1B worker normally commutes from his or her place of residence to the worksite(s) on the approved LCA, the worksite(s) will be considered within commuting distance. If the worksite is within a Metropolitan Statistical Area (MSA), any place within the MSA is deemed to be within normal commuting distance, even if it crosses state lines. Accordingly, H-1B workers may be employed at a worksite within an MSA without the employer having to file a new LCA and without the employer relying on the short-term placement provisions (discussed below).

It is important to note that if the move includes a material change in the terms and conditions of employment, the employer may need to file an amended or new petition with USCIS.

Posting (Reposting) the LCA at Home: In case of a move within the area of intended employment, the employer must provide either electronic or hard-copy of the Notice at those worksites(s) for 10 calendar days total, unless direct notice is provided, such as an email notice to all individuals at the new work location.  For an H-1B employee that is going to work from home/telecommute, he/she must post (repost) the LCA at his/her home (or wherever he/she telecommutes from) for ten (10) consecutive days and complete the posting sheet (LCA Notice) that the employer provides. The posting sheet must then be sent to the employer for placement in the Public Access File.  We call it ‘reposting’ because the LCA would have already been posted initially at the intended worksite(s) mentioned on the LCA.  The posting of LCA at home or telecommute worksite now is therefore considered as reposting.

The posting of LCA at home/telecommute worksite must happen as soon as practical and no later than thirty (30) calendar days after the H-1B employee begins work at the new worksite location (in this instance home or telecommute location).  It is our recommendation that H-1B employees take photos of the posting both the first and last days of posting at their home/telecommute location, preferably with a date stamp, as well as indicate the home address to ensure the alternative worksite is within the MSA.

Short-Term Placement Exception:  H-1B employers with an approved LCA may also move H-1B workers to unintended worksite(s) outside of the area(s) of intended employment on the LCA using the short-term placement provisions. The short-term placement provisions only apply to H-1B workers.   Under Short-Term Placement rules, the placement of an H-1B worker at any site that is outside the area of intended employment should not exceed 30 workdays (consecutive or non-consecutive) within a one-year period.  Such placement may be for an additional 30 workdays, but for no more than 60 workdays, in a one-year period, where (a) the employer is able to show that the H-1B nonimmigrant maintains ties to the home worksite (e.g., a dedicated workstation at the permanent worksite; the employee’s abode is located near that worksite), and (b) the worker spends a substantial amount of time at the permanent worksite. In other words, if the H-1B worker’s home or telecommute worksite is outside the area of intended employment, the 60-workday provision would not apply.

Non-Productive Time & H-1B Employment

Per the Dept. of Labor regulations, an employer must pay its H-1B employees at least the “required” wage, which is the higher of the prevailing wage or the employer’s actual wage (in-house wage) for similarly employed individuals.

Guaranteed minimum number of hours to be paid:  The guaranteed minimum number of hours to be paid for all periods to the H-1B worker is the number of hours that the employer reports on the Petition for Nonimmigrant Worker (Form I-129/I-129W). The guaranteed pay begins when an H-1B employee enters into employment, but in no case later than 30 days after the H-1B employee enters the U.S. to take the job or, where the employee is already in the U.S., 60 days after the H-1B employee is authorized to work for the employer.

An H-1B employer must pay the guaranteed minimum hours unless the H-1B employee is unavailable for work because of non work-related factors, such as the employee’s own voluntary request for time off, or in other circumstances where the worker is unable to work.  H-1B employees must be paid the required wage rate for all nonproductive time caused by conditions related to employment, such as lack of assigned work, lack of a permit, or studying for a licensing exam.  No payment is required under the H-1B program for non-productive time due to reasons not related to employment, such as a worker’s voluntary absence from work or a hospitalization, etc.

Pay Reductions: Under certain conditions, the Dept. of Labor regulations do allow for changes in pay, possibly reductions, as long as the wages do not drop below the prevailing wage.  Where adjustments are made in the employer’s pay system or scale during the validity period of the LCA, the employer shall retain documentation explaining the change and clearly showing that, after such adjustments, the wages paid to the H-1B worker are at least the greater of the adjusted actual wage or the prevailing wage for the occupation and area of intended employment.

Furloughs, Layoffs: Generally speaking, layoff or furlough do not apply to H-1B workers as these mechanisms put H-1B workers in non-productive status without pay, resulting in what is known as benching.   Employers are usually required to continue guaranteeing wages to H-1B employees at all times, productive or non-productive.  Under Dept. of Labor regulations, benching is subject to hefty penalties.

Forced PTO Likely Benching: As noted above, an H-1B employer must guarantee payment of wages at all times including, but not limited to any non-productive time caused by the employer except when such non-productive period of employment was a result of non work-related factors discussed above.

In some instances, employers may however require its employees including, but not limited to H-1B employees to utilize their accrued PTO so long as it does not violate any prevailing state laws and/or employer’s internal employment policies/practices.  However, even if state laws or employer’s own policies are not in violation, requiring/forcing an H-1B employee to utilize his/her PTO for non-productive time is not considered voluntary and therefore likely to be interpreted by the Dept. of Labor as benching (subject to back pay and penalties) even if every U.S. worker is forced to utilize the PTO.  Any PTO utilization by an H-1B employee must be 100% voluntary.

Dept. of Labor’s Reminder on Working Conditions Pertaining to Nonimmigrant Workers

In its recent guidance in April 2020, the Dept. of Labor has reiterated that the employment of H-1B, H-1B1 or E-3 nonimmigrant workers in the named occupation should not adversely affect the working conditions of similarly employed U.S. workers, and that nonimmigrant workers are afforded working conditions on the same basis, and in accordance with the same criteria, as offered to U.S. workers similarly employed.

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