Any adjustment to the employment of an H-1B employee can lead to issues if the changes are not acknowledged and dealt with quickly and properly. Immigration counsel should be alerted when any one of these three situations occurs: 1) when an H-1B employee will be terminated; 2) when an H-1B employee will be laid off; and 3) when any material or substantive changes to the information stated in the original H-1B petition, including the certified LCA, will be made. Counsel can then advise as to whether an amended or new H-1B petition should be filed, if the H-1B should be withdrawn, or if any other action needs to be taken. Some examples of a material or substantive change include:
- An increase or decrease in hours;
- Adjusting from part time to full time or vice versa;
- Moving to a different job location;
- Assigning a new job title; or,
- Making a significant change in job duties or the type of work being performed.
A recent case decided by the Department of Labor states that poor industrial or national economic conditions do not relieve employers from paying H-1B employees the wages stated in the LCA. A Florida company was ordered to pay both back wages and a fine for three H-1B workers who had been reduced to part-time employees and paid an hourly wage that was nowhere near the amount they should have received according to the H-1B petitions. To stay H-1B compliant and avoid paying back wages and fines, employers of H-1B workers must be careful to continue paying the wages outlined in the certified LCA even during times of economic difficulty. If that is not financially possible, then other immediate action must be taken such as filing an amended H-1B petition.
An employer may be excused from their H-1B payment obligations if there is just cause for firing the employee, if the employee is properly laid off, or if an employee asks to be taken away from their duties because of conditions unrelated to his or her employment. Make sure you are aware of the obligations of H-1B employment before diving in and do not let a lapse in judgment or a failure to act in a timely manner during a time of economic struggle come back to hurt your pocketbook in the future.
