Work from Home Scenarios due to Coronavirus (COVID-19), may require a review of companies’ H-1B or E-3 compliance
In almost every state, companies have instituted temporary work from home policies—or have been instructed by government authorities to institute such policies—in response to the coronavirus (COVID-19), in an effort to “flatten the curve” and stop the spread of the virus. In so doing, companies that regularly employ H-1B and E-3 visa holders may need to review and revise compliance strategies to help avoid possible fines and penalties. An H-1B or E-3 visa holder is permitted to work at an identified worksite that is listed on a labor condition application that is certified by the U.S. Department of Labor (DOL) and included in an H-1B or E-3 petition that is filed with U.S. immigration authorities. Working at the identified worksite location is part of the terms and conditions of employment for the H-1B or E-3 visa holder, and changes to this worksite location, even for reasons outside of the employing company’s control, may still lead to penalties for non-compliance.
The new, unintended worksite location is in the same area of intended employment as the normal worksite location. In response to COVID-19, the DOL released a “frequently asked questions” on March 20, 2020, that sought to address certain compliance issues concerning H-1B and E-3 visa holders. Specifically, in this FAQ, the DOL confirmed that if an H-1B or E-3 visa holder and employee moves to a new, unintended worksite location (including the employee’s home address) that is within the same area of intended worksite location, then the company and employer are not required to file a new labor condition application with the DOL that lists the new, unintended worksite location. Instead of filing a new labor condition application with the DOL, the company and employer must provide an electronic or hard-copy posting notice at the new worksite location for 10-calendar days. Normally, the notice must be provided before the H-1B or E-3 visa holder begins working at the new worksite location, but because many companies sent their employees home suddenly and without notice because of COVID-19, the DOL said that the new notice may be provided “as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite locations.”
The new, unintended worksite location is not within the same area of intended employment as the normal worksite location. In situations where the new, unintended worksite location is not within the same area of intended worksite location, often meaning that the H-1B or E-3 visa holder is now working in a different county than his or her regular worksite location, 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. According to the DOL’s FAQ, if the H-1B or E-3 visa holder will work at the new worksite location for more than 30 or 60 days, then the company must file a new labor condition application and a H-1B or E-3 amendment petition with USCIS before the 30 or 60-day period has elapsed. 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 the governing 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 possibly debarment by the DOL from using the H-1B program for a temporary period or time or permanently.