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H-1B, H-1B1 & E-3 Visas: What You Should Know

Provided by Lalitha Alladi

May 2020

H-1B, H-1B1 & E-3 Visas: What You Should Know

The South Asian community in the U.S. has been dealt a heavy blow by the Covid-19 crisis, not least because many Indians on non-immigrant visas have been laid off or furloughed. Recovery is likely to take a while, making the situation more precarious for these workers and their families on dependent visas. Here’s a guide for employees—and employers—on the changes businesses are undergoing during this crisis in terms of work location, pay rate or hours, and employment.

Worksite Address and Posting Requirements

Many employees are currently working remotely at a site not originally listed on their Labor Condition Application (LCA). If the new remote worksite location is within the same MSA (metropolitan statistical area) of intended employment (i.e., within normal commuting distance), the employer need not file a new LCA. However, the original LCA notice must be posted according to Department of Labor (DOL) regulations. The employer may provide the notice through online posting, a direct e-mail, or a hard-copy posting at that remote location. If, however, the new remote worksite location is outside the MSA of intended employment, this is considered a “material change” to the employment. In this situation, the employer will need to file a new LCA and amend the petition.

Has the DOL made any changes during this Covid-19 crisis to help employers? Yes, during the Covid-19 emergency, DOL is allowing employers to post the notice of the filing of an LCA up to 30 calendar days after the H-1B, H-1B1 or E-3 worker begins work at the new worksite location, a provision that was not available prior to the spread of this pandemic. Posting may be placed electronically rather than physically at the job site location. Electronic notification is permissible in lieu of hard-copy posting and should be used when the Covid-19 pandemic makes it impossible for the employer to notify the workforce at that jobsite of the LCA filing. Employers may use any electronic means ordinarily used to communicate with its employees about job vacancies, including its website, electronic newsletter, intranet or e-mail.

Payment Structure

Any reduction in payment or hours is considered a “material change” for immigration purposes and will require that an employer file a new LCA and amended petition.

Termination or Furlough

Unfortunately, any termination or furlough is considered an end of the employment relationship for immigration purposes and an end of status for the employee. Termination results in certain obligations for the employer, including notification to USCIS and offering to reimburse the travel expense for the employee to return to their home country. There is also a 60-day grace period whereby the employee may either seek new employment or change his or her status. If the employer wants the H-1B employee to return to full-time status, another H-1B amendment must be filed. Yes, this can be complex! In sum, because of the mandatory salary requirements, there is no such thing as a furlough for an H-1B visa holder.

APPLICATION FINAL ACTION DATES FOR May 2020

FAMILY	India	Pakistan/Bangladesh
1st	08Jan12	08Jan12
2A	15May17	15May17
2B	01Feb13	01Feb13
3rd	08Nov06	08Nov06
4th	01Aug04	15Feb06

EMPLOYMENT	India	Pakistan/Bangladesh
1st	22Feb17	01Mar18
2nd	16Apr09	Current
3rd	01July09	Current
Other	Current	Current
4th	Current	Current
5th	Current	Current1B

DATES FOR FILING VISA APPLICATIONS - May 2020

FAMILY	India	Pakistan/Bangladesh
1st	22Aug12	22Aug12
2A	08Jan18	08Jan18
2B	01Aug14	01Aug14
3rd	22Jun07	22Jun07
4th	15Mar05	01Oct06

EMPLOYMENT	India	Pakistan/Bangladesh
1st	01Oct17	01Sep18
2nd	01Jul09	Current
3rd	01Apr10	Current
Other	01Apr10	Current
4th	Current	Current
5th	Current	Current1B

https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2020/visa-bulletin-for-may-2020.html

Lalitha Alladi is a Senior Attorney at Kuck Baxter Immigration. She can be reached at (404) 816-8611. Please visit www. immigration.net for more information.

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