Part-Time H1B Helpful during Recession
Posted Dec 05, 2008
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The economic problems faced by the U.S. are impacting foreign national workers. Just this week, the U.S. government officially recognized that we are in a recession and unemployment rates are the highest in decades. We at the Murthy Law Firm are often asked how individuals should deal with immigration issues impacted by this tough financial market. One possible legal option is to file a part-time H1B petition, which can help both the H1B employer and H1B employee. The possibility of part-time employment in H1B status may prove to be a helpful alternative for MurthyDotCom and MurthyBulletin readers who find themselves caught in the economic squeeze of layoffs and down-sizing. For many, this is a matter not just of economic survival, but of their ability to remain in the U.S., as their statuses are tied to employment. The part-time H1B option may provide an avenue for employers to retain some of their workers on a reduced schedule, while providing a mechanism for H1B nonimmigrant workers to maintain status in a difficult economy.
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H1Bs May Work in Part-Time Jobs
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While most H1B workers hold full-time positions, the H1B forms and procedures allow for the possibility of part-time employment. This provides a number of options and variations, including the possibility of holding both a full-time and part-time job, working multiple part-time jobs, or simply working part time.
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Must File an Amendment of Previously-Approved H1B Petition
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An H1B petition and the related Labor Condition Application (LCA) may be prepared initially for part-time employment. Part-time employment is indicated on the LCA and, where part-time is indicated, the wages must be stated on an hourly basis. If an H1B worker has an H1B petition approval based on full-time employment, and the employer wants to change the position to part-time, an LCA must be prepared for part-time employment and the H1B petition amendment must be filed and submitted with the USCIS to reflect the change in hours, in salary, and otherwise. The employer cannot simply reduce the hours (and pay) without amending the H1B petition and LCA.
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Part-Time H1B May Have Range of Hours
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One of the helpful options in part-time H1B petitions is the ability to establish a range of hours. A part-time job may involve working a variable number of hours each week, based upon the employer's need. In order to accommodate this business reality, the H1B can be prepared for a range of hours, such as 20-30 hours per week. With this option, H1B status is maintained by working no fewer than 20 and no more than 30 hours each week.
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Employer Must Pay Based upon Hours Worked
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If part-time H1B workers are to be used, the employer needs to have a system for tracking the hours worked and paying accordingly. If the part-time H1B worker is in a nonproductive status due to a decision of the employer, and the H1B petition indicates a range of hours, then the worker must be paid the average of the hours generally worked.
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No Minimum Number of Hours for H1B Workers
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There is no minimum number of weekly hours for an H1B petition. There are some H1B workers who hold several part-time positions. This is common particularly in academic settings where individuals may teach part time, or where a single position may be funded by more than one source. (This requires multiple part-time H1Bs.) Thus, potentially it would be possible to obtain an approval of an H1B for just a few hours per week.
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Since nothing in the regulations specifies an amount of time each week that an H1B worker must work to remain in status, it is possible to be in status as an H1B worker with a part-time job. There is no guidance on this matter as to any minimum hourly requirements. There is some old guidance on H1B workers attending school, which states that it is permissible, but that the H1B employment must be the primary purpose for being in the United States. This might be helpful by analogy, but even this guidance does not specify hours.
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As with most things, it may be best not to push the limits. One should try to remain within what might be viewed as reasonable hours of work. This would be a matter of opinion and, if needed, argument.
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Part Time Creates Options
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Many employers facing work slow downs may need to reduce their payrolls. If the slow down appears to be temporary, however, it may be better to reduce the hours of certain workers, rather than lay them off entirely. This way, the hours can be increased for the existing employees when business improves, and the company is not in the position of having to locate and train new employees. This can be preferable to both the employer and all company employees, and can work well for H1B workers, also.
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Often, employers need to reduce their workforces, but do not want to harm their H1B employees. Modifying the position to a part-time H1B may provide an option for the employer to keep the H1B worker for a time, and provide the H1B worker with an opportunity to locate a new position or wrap up affairs in the U.S. carefully and gradually. Even if an individual is facing a layoff, it may be easier to find a new, part-time job more quickly, rather than holding out for full-time employment, which may be more difficult to locate. This at least allows one to maintain H1B status while seeking more long-term options.
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Conclusion
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A downturn in the economy poses many challenges. The part-time H1B option offers flexibility that may assist the employer during times when workloads are reduced or variable. Individuals may find that it provides an option for maintaining status and opens a number of options for employment, other than the full-time, single-employer model. This employment option should be discussed with a qualified, experienced immigration attorney. We at the Murthy Law Firm are always happy to consult on legal, creative options to help employers and employees in this challenging economic climate.