Don't Violate Immigration Laws When Making Tough Decisions

According to the Department of Labor’s Bureau of Labor Statistics, North Carolina’s unemployment rate reached 8.7 percent in December. As our economy continues a period of slow growth, many employers are forced to cut costs to ride out the economic downturn. Unfortunately, just looking at labor statistics shows that many employers are making hard decisions such as reductions in workforce, pay, or hours worked by company employees. It’s certainly a difficult economy, but companies must be careful not to violate immigration laws when making tough decisions. For companies employing foreign workers, layoffs carry with them possible violations of immigration law.

So what potential immigration laws could a company violate under these circumstances?

Labor Condition Application Violations

Under the H-1B and E-3 professional visa programs, employers are required to pay their foreign employees a prevailing wage (or actual wage – whichever is higher) for the position. This prevailing wage is determined by the Department of Labor (DOL). These obligations are covered under the Labor Condition Application (LCA) that is filed by employers with the DOL prior to obtaining professional work status for foreign employees. The LCA governs what the employer must pay and the hours the employee must work under the H-1B and E-3 programs.

Employers should be mindful that reducing pay or work hours of foreign employees could result in a violation of the employer’s obligations under the LCA. Make sure that the salary does not fall below the wage listed in the LCA for the foreign employee. That could lead to DOL penalties. Reducing an employee’s status from full-time to part-time is possible, but an employer must first: 1) make sure that they are paying the higher of the actual or prevailing wage for that part-time position and 2) file an amended H-1B/E-3 application that contains a new LCA evidencing the part-time status of the employee. Furthermore, the DOL does not recognize ‘nonproductive work status’ (also referred to as ‘benching’). Employers will be required to make pro-rata payment of required wages even if a foreign worker is put on nonproductive work status.

What happens if an employer terminates an H-1B or E-3 professional workers? An employer must pay for the reasonable costs of transportation for the H1B employee back to his/her home country. This means the cost of a plane ticket home. The obligation covers the foreign national worker, but not their family. The same legal obligation does not exist for workers holding E-3 status.

Some employers will be considered ‘H1B dependent’ if a certain percentage of their workforce consists of H-1B workers. If an employer is H-1B dependent, it must monitor layoffs within its workforce. After an LCA is certified for a position, an employer must make certain that it has not laid off a U.S. worker from an equivalent position within 90 days preceding and 90 days after the filing of an H-1B petition. Employers must be careful to monitor layoffs of U.S. workers under these conditions.

PERM Labor Certification Violations

The PERM labor certification application is the first step of most employer-sponsored permanent residency applications filed on behalf of foreign employees. The purpose of PERM is to prevent the displacement of qualified U.S. workers for the foreign employee’s position. Layoffs of U.S. workers in positions similar to the foreign worker, if they occur within the six-month period preceding the filing of a PERM labor certification, will impact an employer’s recruitment obligations and their ability to file the labor certification application. In this situation, employers will be required to consider the U.S. workers who have been laid off for the position specified in the labor certification. Therefore, it is important that employers monitor layoffs not only in the context of workers in H-1B or E-3 status, but for workers who are going through the permanent residency process as well.

Is it a tough economy? Yes. Will tough decisions need to be made? Perhaps. But be careful not to violate immigration laws while implementing cost cutting measures.