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H-1B Employees – What Happens in a Government Shutdown?

Once again, we face a possible government shutdown on October 1st, since the current continuing funding resolution expires on September 30th. The last threat of a government shutdown was in 2011 and the last actual shutdown occurred in 1995-1996.

The issue, how government contractors must treat H-1B employees during a shutdown, is complicated by competing regulations and interests.  On the one hand, the H-1B process is based on an employer’s assurance, in the Labor Condition Application to the US Department of Labor, that the employer will treat foreign workers as well as it treats its American workers.  But other regulations sometimes prohibit the “benching” of H-1B workers, referring to “workers who are in nonproductive status due to a decision by the employer, such as lack of work or a permit.”  Sometimes, salary reductions, reduced work schedules or furloughs trigger the need for employers to file amended H-1B applications with both the US Department of Labor and US CIS.

So, there is an analysis to be done in the event of a shutdown, as to

  (1) whether H-1B and E-3 employers must pay full wages to H-1B employees it places in non-productive status or reduced work schedules, or
  (2) whether those employers can avoid paying full wages to such employees by filing of H-1B amendments.

Feel free to contact one of our attorneys, if you have a question or would like an analysis of your particular situation.


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