United States: Immigration Obligations During Strikes and Other Labor Actions - What Employers Need to Know

If a strike or lockout occurs at one or more of an organization’s worksites, the company will have immigration compliance responsibilities if the organization employs nonimmigrant workers, even if those workers are not themselves unionized.

• Suspending LCA Filings. Organizations employing H-1B, H-1B1, and E-3 nonimmigrants must first execute a Labor Condition Application (LCA) attesting that there is no strike or lockout in the occupational classification and at the place of employment where the sponsored foreign national will be working. A strike in the foreign worker’s occupation at the intended worksite would preclude an LCA filing during the strike, thereby preventing the filing of new H-1B, H-1B1, and E-3 petitions and applications for the impacted location(s) and occupation(s) for the duration of the strike.
• Notifying DOL of a strike. If the organization sponsors H-1B, H-1B1, and E-3 nonimmigrants, it will need to notify the Department of Labor’s (DOL) Employment and Training Administration in writing within three days of the strike if there are workers striking in the same occupational classification and place of employment as the occupation(s) and place(s) of employment covered by a Labor Condition Application (LCA).
• Impact of a strike notification to DOL. Once DOL has been notified of the strike, it will make a determination, possibly in consultation with the labor union, whether employment of H-1B, H-1B1, and E-3 workers covered by the impacted LCAs would adversely affect the wages and working conditions of U.S. citizens and lawful resident workers. If so, DOL must notify the Department of Homeland Security (DHS) of its determination relating to the strike. When DHS receives notice from DOL, it is required to deny pending or later-filed petitions involving the same occupational classification(s) and place(s) of employment as striking workers. In addition, DHS must suspend approval of any previously approved petitions involving the same occupation(s) and work location(s) of the striking workers if the foreign national beneficiary has not yet entered the U.S., or has entered but not yet begun work, and affected foreign nationals en route to the U.S. on approved but suspended petitions must be denied admission.
• Impact on current H-1B, H-1B1, and E-3 employees. Foreign nationals already working in the United States in H-1B, H-1B1, or E-3 status are not subject to revocations of status based on a strike, nor will an H-1B, H-1B1, or E-3 worker be considered in violation of status for participating in a strike. However, DHS is required to deny any petition to extend or change to H-1B, H-1B1, or E-3 status while the strike is ongoing.
• Impact on other categories of nonimmigrant workers. Regulations also restrict the employment of employees in the TN, USMCA L-1, USMCA E-1/E-2 treaty trader/investor, O, and F nonimmigrant categories during a strike, though the specifics of these restrictions vary according to each worker’s nonimmigrant category. In addition, affected F-1 students on staff at the time DOL notifies USCIS of the strike would have their employment authorization immediately suspended. However, because TN, L-1, E-1/E-2, O, and F-1 workers are not covered by LCAs, there is no obligation to notify the Department of Labor of the strike.

This is a brief summary of obligations in the event of a strike or lockout at your organization. Contact your Fragomen team immediately if a strike or lockout at a company worksite is possible. Your Fragomen team will work with you on the specifics of compliance.

USCIS and DOL regulations limit the ability of an employer to place certain categories of nonimmigrant workers at a worksite where a strike or lockout is ongoing. This is true even if the placed employees are not employees of the striking organization and are not unionized themselves.

If your organization is a vendor, contractor, or subcontractor to a company with a striking workforce, your organization may be subject to significant fines and penalties if it places a covered employee at a striking worksite. Your obligations vary based on the employee’s nonimmigrant category.

If your organization employs H-1B, H-1B1, or E-3 workers, it has filed Labor Condition Applications (LCAs) with the Department of Labor as part of its petitions or consular applications to employ these individuals. In the LCA, your organization attested that there is no strike or lockout in the same occupational classification and place of employment as the occupation and place of employment covered by the LCA, and that employment of the workers covered by the LCA will not adversely affect the wages and working conditions of workers who are U.S. citizens and lawful permanent residents.  

Your organization may have obligations resulting from a strike if:

• Your organization has a vendor relationship with a company that has a unionized workforce;
• Your organization has H-1B, H-1B1, or E-3 employees placed at a worksite where a strike or lockout is ongoing; and
• The employees placed by your organization are in any of the same occupational classifications as striking workers.

Your Fragomen team can work with you to determine whether any of your organization’s H-1B, H-1B1, and E-3 employees are subject to DOL’s strike rules.

You may have strike obligations if your organization places employees in any of the following nonimmigrant categories at an organization whose employees are striking:

• TN professionals;
• L-1 intracompany transferees under the U.S-Mexico-Canada Agreement (USMCA, formerly known as NAFTA);
• Canadian or Mexican E-1 or E-2 treaty trader or investor employees under the USMCA;
• O-1 and O-2 extraordinary ability workers; and
• F-1 students.

The rules concerning strikes affecting these categories are complex, and may vary according to the specific category. In general, though, they restrict employers’ ability to place workers in these categories when employees of the host organization are striking. In addition, the work authorization of F-1 students working pursuant to an employment authorization document is automatically suspended when DOL notifies the Department of Homeland Security that a strike is in progress in the F-1 student’s occupation and place of employment. These rules apply even if your employees are not themselves unionized.

An organization that does not comply with DOL and USCIS strike-related regulations may be subject to significant penalties, including the risk of debarment from nonimmigrant visa programs. 

Civil monetary penalties range from $2,232 per strike-related LCA violation; up to $9,036 for willful failure to comply with strike-related LCA attestations; and up to $63,600 where the employer has displaced a U.S. worker in the period from 90 days before to 90 days after the filing of a petition in conjunction with a willful LCA violation pertaining to a strike or lockout of U.S. worker.

Debarment of up to three years is possible depending on the severity of the violations.

Before you take any action, be sure to discuss any plans with your Fragomen team to ensure that it meets immigration program rules. What follows is a brief discussion of compliance responsibilities that arise when certain adverse employment actions are taken. Because the mechanics of compliance are complex, involve your Fragomen team as soon as possible to inform them about potential changes that impact the position, location, or employment conditions in order to understand the impact to your employees’ immigration status and to minimize the risk of liability.

Any proposed wage reduction of an H-1B, H-1B1, or E-3 employee must be reviewed with immigration counsel to determine whether it is in compliance with DOL wage rules. Wage reductions may require updates to affected LCA public access files and in some cases may require new LCAs and amended USCIS petitions where reductions are significant. For all nonimmigrant visa classifications – not just those with LCA wage protections – your organization should review whether wage reductions are applied consistently to foreign and U.S. workers. Disparate treatment could trigger concerns or complaints about employment discrimination.

Furloughs are not defined by U.S. immigration laws but are typically understood to be temporary leaves without pay with the anticipation that affected employees will return to work. For H-1B, H-1B1, and E-3 employees, a furlough without pay is a violation of LCA wage rules that could lead to back wage liability among other penalties. In addition, regardless of the nonimmigrant work visa category, a furlough can lead to a violation of nonimmigrant status that jeopardizes the employee’s ability to extend or change status.

Termination of an H-1B, H-1B1, E-3, or O employee comes with immigration compliance responsibilities. Where an H-1B, H-1B1, or E-3 employee is terminated, the employer must be sure to notify the employee in writing, notify USCIS in writing, and offer to pay the reasonable costs of transportation to the home country or country of last residence. Failure to meet these responsibilities can result in back wage liability. Terminated O employees must be offered the reasonable costs of transportation to the home country or country of last residence.