May 08, 2020 Immigration Law

Employment-Based Immigration and Worksite Compliance during COVID-19

The COVID-19 outbreak has dramatically altered the landscape of employment-based immigration and worksite compliance. This client alert summarizes some of the more important changes affecting employers and foreign nationals that have taken place during the past few months, and may help to answer some frequently asked questions. Although we have provided this information in previous Immigration Alerts, we recognize that the information was provided at a time of great disruption and uncertainty. To ensure that employers are aware of their immigration-related obligations, we are providing a reminder of the most important points. 

Transitioning to Work-From-Home

To be fully compliant with Department of Labor (“DOL”) regulations, H-1B (and some H-1B1 and E-3) workers who have transitioned to working from home must repost their Labor Condition Applications (LCAs) in two locations at their home for a period of 10 business days. For any workers who are now working from locations outside the “normal commuting distance” (generally considered to be within 50 miles from the office, though that is not a hard rule), employers may be required to file an amended H-1B petition along with a new LCA certifying the employee’s home as a worksite.

Employers sponsoring new H-1B, H-1B1 or E-3 workers, or filing applications to extend those 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 an electronic posting to all employees in the same occupational classification as the H-1B worker. The regulations require that the notice must be visible to U.S. workers. However, since hard copy notices are not visible in an office where no one is working, the most cautious approach in a work-from-home situation is to provide notice to workers (in the same occupational classification as the H-1B worker) electronically, through the company’s intranet, electronic bulletin board or similar placement, or by direct email. In general, the DOL uses a good faith compliance standard in enforcing its LCA regulations.

Furloughs, Terminations and Pay Cuts

Changes to the terms and conditions of employment included in the underlying visa petition or application can trigger a range of requirements and potential consequences, regardless of the reason for the change.

For example, H-1B employees must be paid the required wage listed in their certified Labor Condition Application even during a work furlough. Generally, an employer is not required to pay the wage during an H-1B worker’s voluntary leave of absence, or if a worker is temporarily incapacitated, although the employer is still bound by the Family and Medical Leave Act (“FMLA”), as well as other applicable laws. To date, neither the DOL nor the Immigration Services (“USCIS”) has shown a willingness to relieve employers of their wage obligations in light of COVID-19, although the situation is fluid and evolving.

If an H-1B worker is terminated, the employer must notify USCIS in writing. The employer is also obligated to pay the reasonable cost of the worker’s return transportation to his/her home country. In the event that a termination is later found not to be “bona fide,” the employer may be liable for payment of back wages.

Employers who are implementing pay cuts should be aware of their continued obligations to pay H-1B workers the higher amount of the prevailing wage for the job (as determined by the DOL), or the actual wage (the wage paid to similarly situated employees at the same worksite). In addition, because employers may not discriminate against workers based on national origin, pay cuts should be applied uniformly to US citizen and foreign national workers.

I-9 Compliance

The Department of Homeland Security (“DHS”) has announced that employers and workplaces that are operating remotely because of COVID-19 will not be required to be physically present to review their employees’ identity and work-authorization documents for I-9 purposes. However, these employers must still inspect such documents remotely (for instance, by video, fax or email) within 3 business days of beginning work, and must still complete Section 2 of the Form I-9 as usual. Employers should maintain and provide written documentation of their remote inspection policy.

Within 3 days after normal operations resume, employers should physically inspect the documents and enter “COVID-19” in the Section 2 Additional Information field as the reason for the delayed physical inspection. After the physical inspection, employers should add “documents physically examined on [date]” to the Section 2 Additional Information field or to Section 3, as appropriate.

For employers whose workplaces remain open, the usual physical presence requirements apply.

In addition, DHS has announced a temporary policy regarding expired List B identity documents for purposes of completing the I-9 form. As of May 1, 2020, employers can accept identity documents that were set to expire on or after March 1, 2020. In this case, the employer should enter “COVID-19” in the Additional Information Field. The employee must then present a valid unexpired document within 90 days of the termination of this policy, and employers should update the I-9 accordingly.

Worksite Enforcement

Prior to the pandemic, worksite investigations of all businesses had been on the increase. Despite the momentary pause because of shutdowns and temporary worksite closures, the government’s enforcement activities are expected to resume, and in all likelihood increase, once conditions permit. Employers are well-advised to ensure that their compliance efforts are reviewed and addressed in a timely fashion.

Employment-Based Green Card Applications

Effective April 23, 2020, a presidential executive order went into effect imposing a 60-day suspension of permanent resident (green card) processing for applicants who are currently outside the United States, and who do not already have a valid immigrant visa or other official travel document. Several categories of green card applicants are exempt from this suspension, including applicants for adjustment of status who are already inside the United States, spouses and minor children of US citizens, health care professionals seeking to enter the United States to alleviate the effects of COVID-19, EB-5 investor visa applicants, asylum seekers, members of the US Armed Forces and their spouses and children, and individuals whose admission to the United States would further U.S. law enforcement objectives or whose admission is otherwise in the US national interest.

The policy will be reevaluated 60 days after enactment, at which point it may be discontinued, modified, or extended.

While applicants for temporary working visas (such as E, H, L, O, and P nonimmigrants), students and visitors are not included in the ban, the order requires officials to review nonimmigrant (temporary) visa programs within 30 days of the effective date and to recommend other economic stimulation measures to promote “the prioritization, hiring and employment” of US workers.

In practical terms, the executive order does little to change the current reality facing all green card and nonimmigrant visa applicants outside the United States. For the past 2 months, US embassies and consulates have stopped processing green card applications (as well as temporary visa applications) except in emergency situations. The executive order simply extends the stoppage for certain green card applicants for an additional 60 days. Nevertheless, many believe the administration will attempt to extend and possibly expand the executive order. We will continue to provide updates through our client alerts.

If you are an employer considering furloughs, layoffs, pay reductions or other workplace changes, or if you are an employee impacted by any of these measures, please contact your KM&M attorney as soon as possible. We will review the risks to both employer and employee, consider possible stop-gap measures, and recommend other steps that can be taken to protect both the business and its sponsored employees.