H and L Status Employees and COVID-19
The global outbreak of the Coronavirus (COVID-19) has resulted in many employers recommending or implementing work-from-home policies for their employees, especially those returning from travel. These policies aim to reduce the transfer of the virus and avoid unnecessary spread in the workplace. Employees on H and L work visas have specific worksite requirements, but these work-from-home policies are unlikely to negatively affect an employer’s or nonimmigrant employee’s immigration compliance.
If you have H and L status employees working from home, these are some things to consider:
- An amended petition or Labor Condition Application (LCA) should not be required as long as the employee is working in his typical capacity, and, for an H1-B employee, is within the same commuting distance of the work location listed on the original petition.
- LCA posting is not required at the employee’s home, because it is outside the scope of the Department of Labor’s definition of “worksite.”
- Wage obligations remain the same for employees working from home.
- Placing employees on unpaid leave for work-related reasons, such as an inability to perform their work from home, could cause immigration compliance issues.
- If your employee’s status is terminating or maxing-out during the COVID-19 outbreak, you should attempt to file a change of status petition before his period of authorized stay ends, as he may be eligible for another nonimmigrant visa.
- Employers should document all COVID-19 related instructions to employees to help explain worksite location changes should an audit occur.
As the COVID-19 situation develops, employers should attempt to maintain immigration compliance; however, it is unlikely that the government will punish employers taking reasonable precautions to prevent the spread of the virus and ensure the well-being of their employees.
If you have questions on how your COVID-19 work policies may impact your employee’s immigration status, be sure to contact Berardi Immigration Law to schedule a consultation with one of our knowledgeable attorneys today!