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COVID-19 benching: H-1Bs can’t sit this one out

Gavel to Gavel

published in The Journal Record | April 29, 2021

The ongoing COVID-19 pandemic continues to complicate how employers approach temporary layoffs and furloughs spawned by lost revenues and reduced demands for services. As if navigating the employment-based immigration laws weren’t complicated enough, now employers must balance implementing cost-saving measures with their federal obligations to employer-sponsored migrant workers.

Let me explain: As a cost-saving measure, a company advises its employees that each employee is required to take a certain number of unpaid hours or days off, every week or every month, through the end of this year. If the company employs H-1B workers, this measure potentially runs afoul of the federal laws governing the H-1B worker’s conditions for employment. In the immigration world, this is referred to as “benching.”

The prohibition on benching is hardly a novel concept. However, the prolonged pandemic brings the anti-benching regulations into focus as employers grapple with cost-saving measures. The Labor Conditions Application prescribes the H-1B employee’s wages, payment frequency, and employment status and certifies the employer will pay the employee for “nonproductive time.” The regulations define “nonproductive time” as time an employee is not performing work and is in a nonproductive status “due to a decision by the employer.” Regulatory examples include lack of assigned work and lack of permit or license. However, if the employee is in a nonproductive status unrelated to their employment – e.g., vacation, family medical leave, or conditions that render the employee temporarily incapacitated – an employer is not obligated to pay the employee for the nonproductive time if the employer does not provide that benefit to other employees.

The looming question: Will the regulating agencies attribute temporary layoffs and furloughs due to the pandemic or governmental decrees affecting work flow as a “decision by the employer” or a condition unrelated to employment?

In implementing cost-saving measures, an employer must be mindful of its federal obligations. A material and substantive change to the H-1B worker’s conditions of employment may cost the employer thousands in civil penalties, back wages, and suspension from the H-1B visa program. Employers have several options to legally implement their cost-saving measures as it relates to H-1B workers. To fully understand your obligations and ensure your actions conform to the laws, contact your immigration lawyer.

A final note: The H-1B visa is an effective vehicle to recruit talented foreign nationals and, with the employer’s assistance, paves the way to permanently retain talented individuals in the United States.

Kate N. Dodoo is an immigration attorney and a member of McAfee & Taft’s top-ranked Labor & Employment & Litigation & Appellate groups. Previously, she served as an assistant chief counsel with the Office of the Principal Legal Advisor, U.S. Immigration Customs and Enforcement.

This article appeared in the April 29, 2021, issue of The Journal Record. It is reproduced with permission from the publisher. © The Journal Record Publishing Co.