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Client Alert / March News Update 3.4

LCAs / Amended H-1Bs / DOS Travel Recommendation / USCIS Updates

March 21, 2020

USCIS Temporarily Suspends Expedited Processing on Applications for Nonimmigrant Visas and Employment-Based Green Cards

On March 20, 2020, the US Citizenship and Immigration Services (USCIS) announced it would temporarily suspend premium processing for Forms I-129 and I-140. This policy affects applications for nonimmigrant visas including E-1, E-2, H-1B, H-3, L-1, O, P, Q, R and TN visas, as well as employment-based green card petitions. Petitioners who have already paid the premium processing fee but do not receive a decision within the mandated 15 calendar days will receive a full refund from USCIS.

DOS Recommends Avoiding All International Travel

The Department of State has advised against all international travel for the duration of the COVID-19 outbreak. US citizens and permanent residents who are temporarily abroad should make plans to return to the United States as soon as possible unless they are prepared to remain abroad indefinitely. All travelers should expect that flights may be canceled, borders may close unexpectedly, and they may be subject to mandatory quarantines or prevented from reaching their destination for an indefinite period of time.

Please contact us if you have any questions about your travel plans.

Client Alert: LCAs and Amended H-1Bs During Work-From-Home Period

Many employers have either voluntarily moved to a work-from-home (WFH) model or have been mandated to do so in response to COVID-19. For employers of H-1B (and in some cases, H-1B1 or E-3) visa holders whose original petition did not contemplate the employee working from home, this may trigger the need to repost the Labor Condition Application (LCA) and/or file an amended petition with USCIS. Generally, new LCAs do not need to be posted for short-term placements of up to 30 days. However, COVID-19 may force employers to continue their WFH policies for a longer period. If WFH continues for an extended period, employers and H-1B workers may be required to repost their LCAs at home and, in certain circumstances, amend H-1B petitions to include the applicant’s home as a verified worksite.

Employers sponsoring new H-1B, H-1B1 or E-3 workers, or filing an extension application for those same categories, are required to provide notice of the filing of an LCA.  This can be done either by posting a hard copy of the notice at the place of employment or by electronic posting to all employees in the same occupational classification as the H-1B worker.  In general, the Department of Labor uses a good faith compliance standard in enforcing the LCA regulations. The regulations indicate that the notice must be visible to U.S. workers. Notices are not visible in an office where no one is working. In a WFH scenario, the most cautious approach would be to provide notice to workers (in the same occupational classification as the H-1B worker) electronically, either through the company’s intranet or via direct email.

Filing an amended H-1B petition is only required in cases where the WFH policy lasts longer than 30 days and where the worker’s home is located outside the “normal commuting distance” of the office.

Because each individual case will present its own considerations, we encourage you to contact your KM&M lawyer to discuss how the LCA posting and amended filing requirements apply to your H-1B workers.