1. What if someone's H-1B is denied or their assignment ends and given the travel restrictions, they cannot return to their home country?
A: Under current regulations, nonimmigrant workers have a 60-day grace period of unemployment time during each authorized period of stay. If the nonimmigrant worker is reaching the end of his/her 60-day grace period, and travel restrictions are still in place, it may be possible that he/she apply for a Visitor Visa by submitting form I-539, Application To Extend/Change Nonimmigrant Status (please note that Visitor Visas are not work authorized). For more information on required actions after a denial or termination, please consult counsel for guidance specific to your circumstances.
2. Is there any update to the H-1B grace period (60 days) during the duration of coronavirus, in the event of layoffs?
A: At this time, there has not been an update to the grace-period allowed to nonimmigrant workers following employment termination. Under current regulations, nonimmigrant workers have a 60-day grace period (assuming they have at least 60 days left on their I-94 authorized period of stay) to leave the U.S., find a new employer, or change visa status.
3. Can H-1B employees work from home? If yes, for how long? Can H-1B employees work from home from a different state/country than our employer?
A: H-1B, H-1B1, and E-3 employees may continue to work for their employer from home indefinitely, provided that their home address is within the same Metropolitan Statistical Area (MSA) as that which was listed on the Labor Condition Application (LCA) included with the original petition filing.
- The same Metropolitan Statistical Area is defined by being within reasonable commuting distance from the worksite location listed on the LCA (generally, approximately 50 miles from the worksite location).
If the employee’s home address is located in the same MSA as the worksite listed on the LCA, it is best practice to have copies of the LCA that was included in the original petition posted in two separate and clear locations at the home address for a minimum of 10 calendar days (eg: kitchen and study; living room and den; etc.) or to use electronic posting methods. Please reach out to counsel with additional questions if you have confusion about the area of intended employment and MSAs of specific employees’ worksites and home addresses.
If an H-1B, H-1B1, or E-3 employee is not working from home within the same MSA or reasonable commuting distance from their worksite, the Department of Labor has allowed employees up to 30 working days to perform work from this alternative secondary location (such as a home address). In some situations a 60 day short term placement option may also apply. Thereafter, an amendment must be on file with the USCIS before continuing to work at this new worksite.
4. Can H-1B workers take unpaid/reduced pay leave?
A: H-1B, H-1B1, and E-3 employees may take voluntary pay leaves, although the employer should keep a detailed record of the employee’s documented wish to take unpaid leave if this is the case. Employers may reduce the salaries of their H-1B, H-1B1, and E-3 employees in certain instances without further action depending on whether these are across-the-board salary changes and whether the new salary is still above the required prevailing wage requirements and actual wages paid to others in the same or similar roles. In other instances amendments will be needed. This is an item to discuss right away in anticipation of any changes as the best practice is to get a new LCA and amendment prepared and filed prior to affecting such changes. For further information, please contact your attorney and legal representatives.
5. What is the status of current H-1B registrations? Do we have hope starting now until Sept 30, 2020, for our applicants?
A: USCIS made registration selections available by end of day on March 31st, effectively ending the 2020 H-1B lottery selection period. If USCIS does not receive enough H-1B petitions from selected registrants before the June 30th filing deadline, USCIS may continue to select H-1B registrants until they receive enough petitions to reach the numerical cap. However, with 275,000 registrations submitted this year, the odds of being selected after March 31st remain unlikely. USCIS will officially end the H-1B selection period by September 30th. All registration status should be updated no later than October 1st.
It is USCIS’s intention to adjudicate all H-1B cap-subject applications by the October 1st starting validity date. However, in past years, due to increased volume, USCIS has been unable to guarantee all petitions would be adjudicated by this date.
6. For applicants in the U.S. with pending H-1B petitions, is premium processing canceled?
A: On March 20, 2020, USCIS announced the immediate suspension of Premium Processing for all I-129 and I-140 forms, including H-1B petitions. However, USCIS will process any previously accepted Form I-907s that were filed prior to March 20th. All cases filed after March 20th will be adjudicated with regular processing.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a Bridge-affiliated partner attorney or another qualified legal professional.