On Mar 06 2020 by William A. Stock
Coronavirus Considerations for H and L Status Employees
The Coronavirus (COVID-19) epidemic has been dominating news stories across the globe. While there are many questions and concerns still unaddressed, there are precautions and preventative measures being taken by governments, businesses, schools, and communities across the U.S.
Many employers are making preparations or recommendations to staff members to work from home, particularly those returning from travel. The global outbreak has employers trying to address concerns over the transfer of the disease in the workplace through handwashing guidance, avoiding close contact, and suspending business travel, in addition to some recommending staff work from home. How will these work-from-home directives affect H and L status employees that have specific worksite requirements?
- Do I need to submit an amended petition or LCA for an H or L employee to work from home?
For an H-1B employee, an amended petition or LCA should not be required as long as the employee is working in the same capacity and within typical commuting distance of the work location on the original petition and LCA. For L-1s, as long as they are temporarily working from home, in virtually the same capacity, an amended petition is not required.
- How does this affect LCA notice posting rules?
DOL guidance indicates that LCA posting is required at any “worksite,” but it is a reasonable interpretation that the DOL’s definition of “worksite” does not include a work-from-home arrangement in the same geographic area as the employee’s main worksite. In addition, even if it were a “worksite,” an argument can be made that there is no requirement to post since there are no other employees at that location to whom notice can be given.
- What if I have a nonimmigrant employee facing a max-out, expiration, or denial during this time?
You should closely monitor when the 180-day unlawful presence rule will apply. If a change of status petition can be filed before their period of authorized stay expires, another nonimmigrant visa may be an option, or the employee may have to be relocated abroad.
- Does the worksite change affect wage obligations?
Whether the H or L employee is working from home, at the employer’s or end-client’s worksite, the wage obligation remains the same. If the employee has requested sick leave, family leave, or another reason for a bona fide leave of absence, the employer may allow such leave to be unpaid if consistent with the employer’s general leave policy. If the employer places the employee on leave for a work-related reason (for example, the employee’s job can only be performed at the employer’s place of business and not remotely), placing an employee on unpaid leave may cause compliance issues. Such situations should be discussed with your Klasko attorney.
- What other documentation might be needed?
Petitioning employers should document any Coronavirus instructions from either the petitioning employer or the end-client in third-party worksite scenarios. In the event of an internal self-audit or government investigation, these documents will help to explain the reasons for the swift change in worksite location and dated documentation will coincide with the change to working from home.
There are many safety priorities and obligations employers are contending with during this time that is rapidly changing as more information is available. With the focus on containing the spread of the virus and treating the sickened, it is unlikely that the government will challenge an employer taking reasonable precautions to protect its workforce and community while making every effort to maintain immigration compliance.
Please contact your Klasko attorney with any questions about this client alert.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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