Even though the economy continues to shutter, and while it seems many employers are more confident in hiring, some are continuing to express concerns about their H-1B employees. Many of these employers are feeling the pressures of diminishing revenues combined with increasing overhead costs. Unfortunately, many employers are having to layoff employees in order to keep the business afloat until their industry recovers. While others are trying to keep a lower overhead, but holding on to those valued employees; specifically, after spending thousands of dollars training them.
Many employers are now asking, "can I reduce the hours of my H-1B employees in order to keep them on staff and be in compliance with the law?" Generally, yes, you can do this; however, the employer must first make a couple of changes in their filings with DOL and USCIS.
It is unlawful to change an H-1B employee from full-time to part-time status without continuing to pay that employee the agreed wage stated in the previously-filed and certified Labor Condition Application. Nevertheless, it is legal for an employer to make a change in the number of hours worked by an H-1B employee, after the proper filings have been done.
How is a full-time worker status defined with respect to H-1B employees? The U.S. Department of Labor ("DOL") views full-time employment to be approximately 40 hours per week, but in no case considerably less than 35 hours per week. Making things more difficult for H-1B employers, the DOL views any significant decrease by the employer of its normal weekly full-time hours to be a movement towards part-time H-1B employment.
What can an employer do if it wants to reduce its H-1B employee's hours? According to the DOL, the employer must file and receive a new certified Labor Condition Application showing the position being filled by the H-1B employee is now part-time employment (less than 35 hours). Even if the new Labor Condition Application is certified for a part-time position, the employer must still pay the H-1B employee for at least the number of hours stated upon the 1-129 petition the employer initially filed with U.S. Citizenship and Immigration Services ("USCIS") - unless an amended 1-129 petition is also filed, stating the new employee's lowered number of work hours.
The employer does not have to wait for the amended petition to be approved by USClS, before reducing the work hours. Generally, as long as the amended petition has been filed, such changes can be implemented. With the rise of H-1B audits by DOL in the last two quarters of 2011, this process is taken very seriously by the DOL. The DOL will prosecute claims against an employer that has knowingly filed an LCA containing misrepresentations or that has failed to pay its H-1B nonimmigrant employee the stated wage. Also, the DOL's penalties can be significant to the employer. Initial and negligent violations may include a $1,000.00 fine per violation, as well as payment of back wages. But a willful violation can carry a penalty of up to $35,000.00 as well as other penalties, such as debarment from petitioning of other H-IB visa employees.
Due to the complicated issues involved and prospective exorbitant financial penalties, harsh consequences, and ever changing interpretations, an employer should pay careful attention to both DOL regulations and statutes when dealing with similar situations.
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