info@calderinoliva.com
As result of COVID-19, our company
has shifted to telework. We employ H-1B
and E-3 visa holders and they will no longer be working at the identified
worksite location. How will shifting
these employees to telework affect our compliance with these programs?
As we all take part in the
effort to “flatten the curve” and lessen the spread of the coronavirus
(COVID-19), many companies have decided to implement procedures for
telework. This is also true for
companies which reside in states where government authorities have instituted
orders to “shelter in place.”
This new shift may affect those
companies that have H-1B and E-3 visa holders on their payroll and may require
a revision of the company’s compliance strategies to avoid possible fines and/or
penalties.
The U.S. Department of Labor
certifies the labor condition application which lists the identified worksite
location where the H-1B or E-3 visa holder is permitted to work. This identified worksite location is also
listed on the H-1B or E-3 petition that is filed before the U.S. Citizenship
and Immigration Services (USCIS). That
is, generally, work must be performed at the identified worksite location as a
condition of employment of the H-1B or E-3 visa holder
and any change of this worksite location, even for reasons beyond the
employer’s control, may still result in non-compliance penalties for the
employer company.
Two preliminary considerations to
keep in mind depends on whether the new worksite location is in the same area
of intended employment as the normal worksite location or if its in a different
area.
On March 20, 2020, The DOL released answers to “frequently asked questions” confirming that when an H-1B or E-3 visa holder (employee)
moves to a new, unintended worksite location (including the employee’s home
address) that is within the same metropolitan statistical area ("MSA") of the intended worksite location, then the
company (employer) is not required to file a new labor condition application
with the DOL that lists the new, unintended worksite location.
The company (employer), however,
must provide an electronic or hard-copy posting notice at the new worksite
location for 10-calendar days. Traditionally, the posting notice should
have been provided before the H-1B or E-3 visa holder began working at the new
worksite location.
Recognizing that as a result of COVID-19, many companies were forced into telework with very little to no notice to their employees, the DOL allows for the new notice to be provided “as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite locations.”
By contrast, where the new, unintended worksite location is not within
the same MSA of the intended worksite location, the company or employer may be
required to file a new labor condition application. For example, if the H-1B or E-3 visa holder
will work in a different county than his or her regular worksite location for
more than 30 or 60 days, then the company must file a new labor condition
application along with an H-1B or E-3 amendment petition with USCIS before the
30 or 60-day period has elapsed.
An exception may exist if, for
example, the H-1B or E-3 visa holder is now working at the new worksite
location for a period of less than 30 days, then the company may take advantage
of the short-term placement rule for up to 30 days, or possibly 60 days
provided other conditions are met.
The DOL in its FAQ’s states that a
company and employer’s failure to file the H-1B or E-3 amendment within the 30
or 60-day period may result in DOL investigations and/or penalties for failing
to comply with its existing regulations.
Penalties may include civil
penalties of up to $7,846 per violation, the award of back wages plus interest
being paid to the H-1B or E-3 visa holder, and the possibility of not being
allowed by the DOL to use the H-1B program for a temporary period or time or
permanently.
The above information is provided for information purposes. It should not be construed as legal advice or the formation of an attorney/client relationship.
