COVID-19 benching: H-1Bs can't sit this one out

The ongoing COVID-19 pandemic continues to complicate how employers approach temporary layoffs and furloughs spawned by lost revenues and reduced demands for their services. As if navigating the employment-based immigration laws weren't complicated enough, now employers must balance implementing cost-saving measures with their federal obligations to employer-sponsored migrant workers.

Riding the bench

Let me explain: As a cost-saving measure, a company advises its employees that each employee is required to take a certain number of unpaid hours or days off, every week or every month, through the end of the year. If it employs H-1B workers, this measure potentially runs afoul of the federal laws governing their conditions for employment. In the immigration world, this is referred to as "benching."

The prohibition on benching is hardly a novel concept. The prolonged pandemic, however, brings the antibenching regulations into focus as employers grapple with cost-saving measures. The Labor Conditions Application (LCA) prescribes the H-1B employee's wages, payment frequency, and employment status and certifies the employer will pay the employee for "nonproductive time." The regulations define "nonproductive time" as time an employee isn't performing work and is in a nonproductive status "due to a decision by the employer."