Consequences of COVID-19 to Workplaces
The COVID-19 pandemic has had an immeasurable impact to entire industries and marketplaces, impacting large and small employers and employees throughout the world. Employers in the United States have had to cut hours and employees, either through lay-offs or furloughs, move business to a work-from-home format, reduce hours and salaries, and some have even struggled to maintain staff and hire new employees.
The economic impacts from COVID-19 have especially impacted nonimmigrant workers who must meet certain work requirements under nonimmigrant visa requirements. This article discusses how different impacts from COVID-19 affect work requirements of nonimmigrant visas, particularly the H-1B, E, L, O and TN visas.
Vaccination Requirements for Workers
Since vaccines started becoming widely available in 2021, there have been various vaccination requirements implemented throughout the United States by federal, state, and local governments as well as employers.
Employers Requiring Vaccines
Private employers in the United States are permitted to require their employees to be vaccinated or show proof of a negative test result. These requirements apply to immigrant, non-immigrant, and U.S. citizen employees. Many employers large and small have decided to enforce a vaccination or testing requirement among their employees, including Apple and AT&T.
Federal Government Vaccination Requirements
The Biden Administration announced in 2021 a few vaccination requirements affecting employees and health care workers. The requirements apply equally to immigrant and non-immigrant workers and U.S. citizens alike.
First, the Administration implemented a requirement that federal employees and federal contractors receive a full vaccination series as a condition of employment.
Second, the Administration announced a rule through the Department of Labor’s Occupational Safety and Health Administration’s (OSHA) that required employers with 100 or more employees to ensure their workers are fully vaccinated or can provide proof of a negative test result each week. However, this rule was struck down by the United States Supreme Court in January 2022, which invalidated the rule and removed the requirement.
Third, the Administration announced a rule through the Department of Health and Human Services’ Centers for Medicare & Medicaid Services (CMS) that requires health care workers to be fully vaccinated if they work at facilities that participate in Medicare and Medicaid. The U.S. Supreme Court upheld this requirement.
State and Local Government Vaccination Requirements
State and local governments are permitted to implement vaccination or testing requirements for their employees just like private employers. In California, the state government began requiring all teachers and staff in K-12 public schools to be fully vaccinated for the 2021-2022 school year. The requirements apply equally to immigrant and non-immigrant workers and U.S. citizens alike.
Employment Requirements for Nonimmigrant Workers
Labor Condition Application (LCA)
Certain nonimmigrant worker visas require that the petitioning employer have a Labor Condition Application (LCA) certified by the U.S. Department of Labor. The LCA requires the employer to show that it will treat the visa holder the same as other qualified workers in its same geographic area with regard to wage, and that other employees will be unaffected by the employer’s working conditions.
The LCA requirement applies to only some nonimmigrant worker visas, including the H-1B, H-1B1, and E-3 visas. Nonimmigrant workers who are in the United States under one of these visas must file a new LCA and a new or amended petition when there are changes to the nonimmigrant worker’s employment, such as work location, salary, and a change in work hours.
Material Change to Terms of Employment
The United States Citizenship and Immigration Services (USCIS) generally requires that all employment visa holders notify the USCIS when there is a material change to the terms of the visa holder’s employment. A material change to employment can include various types of changes to employment, including a change in work location, changes to the nature of the business, change to work hours, change to salary, or change to job title, among others.
What to Keep in Mind About Workplace Changes
It is important to consider that the parameters of what constitutes a “material change” is not always clear. Nor is it always clear whether a “material change” applies to certain visas, despite applying to other visas. This is because a workplace change may be more material to one type of visa classification than another due to the specific requirements of different visas.
Employers should carefully evaluate whether something constitutes a “material change” if it is unclear, as well as the costs and benefits of opting not to file a new or amended petition for a change. Some employers may be inclined to avoid scrutiny from the USCIS and not report changes that are questionably “material.” However, the risks of failing to report a workplace change, such as revocation of the visa, should be taken into account as well.
How Work Location Impacts Nonimmigrant Workers
H-1B visa holders who have to change work location, such as by transitioning to work-from-home, must file an amended petition and a new LCA only if the new location of employment is outside of the metropolitan statistical area (MSA) or area of intended employment under the existing approved petition.
The H-1B visa holder can begin work at the new location once the amended petition is filed without waiting for a final decision on the location change from the USCIS.
Generally, E-1 and E-2 visa holders have more flexibility regarding their work location, and are thus not required to file a new or amended petition. However, E-2 visa holders are required to report substantive changes, which are similar to material changes described above; but, a change in work location would likely not qualify.
E-3 visa holders, on the other hand, are subject to the LCA requirement and must file a new petition and LCA if work location changes.
Whether or not L-1 visa holders have to report a work location change to the USCIS is determined on a case-by-case basis. L-1 visa holders are subject to site visits Since it is not always entirely clear what cases require L-1 visa holders to report a work location change, the employer of the visa holder may want to file an amended petition to avoid a possible revocation of the L-1 visa following a site visit by the USCIS. L-1 visa holders who received their visa under a blanket petition do not need to submit a new or amended petition if the new work location is an address listed on the blanket petition.
The USCIS does not conduct site visits for O-1 visa holders, making it easier to switch work locations. However, because a change in work location may constitute a material change to employment, the employer may want to file a new petition for the O-1 visa holder, especially if the new work location is in a different city.
TN visa holders are also not subjected to USCIS site visits. However, a change in work location may constitute a material change to employment if the new work location is in a different city.
How Changes in Work Hours Impact Nonimmigrant Workers
Generally, changes in work hours are considered to be material changes to employment, especially a change from full-time to part-time or vise-versa. It is less likely that visas that do not require a LCA will be subject to scrutiny for a change in work hours, especially if the change is only temporary and not long-term, and all other conditions of employment remain the same.
How Salary Reductions Impact Nonimmigrant Workers
Visas that do not require a LCA also do not require a prevailing wage determination, which gives these visas more flexibility with regard to salary changes, especially if all other conditions of employment remain the same. Changes to salary under these visas should be considered on a case-by-case basis, however. If the salary change is significant, such as half or double what the employee made previously, it may be safest to report this as a material change.
E-2 visa holders, on the other hand, are subject to the income requirement that the E-2 investor’s income must not be “marginal.” This means that an E-2 visa holder’s income must have a present or future capacity to generate more than enough income to provide a minimal living for the E-2 visa holder and his or her family. A reduction in salary that moves the E-2 investor’s income into “marginal” is not allowed under the parameters of the visa.
H-1B visas require that a new or amended petition be filed if there is a reduction in salary.
How Furloughs Impact Nonimmigrant Workers
Generally, visa holders are permitted to take voluntary personal leaves of absence without pay so long as the reason for the leave is well-documented by the employer. However, because furloughs do not constitute voluntary personal leave, a visa holder who is not working because they were placed on furlough is deemed “out of status.”
Employers that need to furlough a nonimmigrant worker may be able to do so using the 60-day grace period granted to nonimmigrant workers who stop working for one reason or another. Nonimmigrant workers who have stopped working have 60 days from their last day of work to leave the United States before they fall “out of status.” If an employer re-hires a nonimmigrant worker within this 60-day period, the visa holder can return to work much like an employee taken off furlough returns to work. Nonimmigrant workers are granted only one 60-day grace period under their visa’s validity period, so employers and visa holders can only use the grace period in lieu of a furlough once.
When Does a H-1B Visa Holder Not Need to File an Amended Petition?
Due to the LCA requirement placed upon H-1B visa holders, there are more situations where a H-1B visa holder will need to file an amended petition to the USCIS after a work change. Here are some situations where H-1B visa holders do not need to file an amended petition:
- The visa holder’s new job location is within the same metropolitan statistical area or area of intended employment;
- The visa holder is placed at a new job location for a short-term period of time, such as 30 days, or 60 days, if the visa holder is still based at the initial location;
- The visa holder’s job is “peripatetic in nature,” such that it is not located at one job site, requiring the visa holder to travel for short periods to other locations “on a casual, short-term basis” not exceeding five consecutive workdays for any one visit by a peripatetic worker or 10 consecutive workdays for any one visit by a worker who is primarily located at one job site but occasionally travels to other locations.