The economic crisis has employers considering unprecedented measures to cut expenses and reshape workforces to ensure maximum efficiency. H-1B employers need to be mindful of special considerations impacting them in the case of a layoff, furlough, pay reduction or other material change in the H-1B worker’s terms of employment.
As part of the H-1B process, employers attest to providing certain wages and working conditions to H-1B workers in a Labor Condition Application (LCA) attestation. Employers may be subject to back pay penalties and/or civil fines for failing to pay the wage indicated on the LCA or for failing to formally withdraw the H-1B petition following termination of the employment relationship with the H-1B worker. In addition, amending LCA wage attestations may be required due to reductions in pay. Employers also must consider the impact of a furlough on H-1B workers. Employers need to be mindful of such changes and the special implications and requirements affecting H-1B workers to avoid additional liability. H-1B employers are thus well advised to consult with immigration counsel as part of developing a plan to restructure their workforce or any terms of employment.