The situation with COVID-19 is developing rapidly and will have wide-ranging effects on immigration and immigration-related compliance. As the Department of Homeland Security (DHS), specifically U.S. Citizenship & Immigration Services (USCIS), the Department of Labor (DOL) and the Department of State respond, we want to provide you with the information we have at this time. Please note that new updates are coming out daily, and we will do our best to keep you updated with information that may be relevant for you and your workforce.
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USCIS and Department of Labor (DOL) Operations
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At this time, USCIS and DOL are still operating and processing cases including Labor Condition Applications and prevailing wage requests filed through the FLAG systems, premium processing requests filed with USCIS (with the exception of FY2021 cap cases - see below), and the H-1B Cap Registration and lottery.
- Premium Processing Service for H Cap Cases: On March 17, USCIS announced that it is temporarily suspending premium processing service for FY2021 cap-subject H-1B petitions. Premium processing will resume in a two-phased approach, starting with petitions for F-1 students requesting a change of status (resuming no later than May 27, 2020) and then everyone else (resuming no earlier than June 29, 2020).
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Issues Related to H-1B, H-1B1, and E-3 Workers
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- LCA Notice Issues: DOL has not issued official guidance on how employers are expected to fulfill their posting requirements. Please note that the general enforcement standard set by DOL is good faith compliance.
Employers of nonimmigrants in certain visa categories, including H-1B, H-1B1 and E-3 workers, have LCA obligations that may be impacted by remote employment. In these sections, we will refer to H-1B workers, but the same rules will apply to the other statuses. These rules affect new hires, H-1B extensions, and current H-1B workers.
New hires and extensions: DOL regulations require the LCA posting notice to be posted prior to submitting the LCA to the DOL. This is the initial step in preparing an H-1B petition. As long your worksites remain open, you should be able to proceed with posting as usual. However, if your worksite is closed, then posting the notice at that site will not fulfill the notice requirement.
If possible, we recommend that you move to an electronic LCA posting system. To comply with electronic LCA posting, the employer must post on the company’s Intranet for 10 business days or send blast emails for 10 consecutive business days. Please note that the worksite for each LCA must be clear and the postings must be available to all workers at that location – including third party employees.
Current H-1B employees: DOL regulations require that notice must be given to other workers in the occupational classification at the worksite prior to the H-1B employee reporting to a new worksite.
- H-1B employees working remotely within the same Metropolitan Statistical Area (MSA) as their worksite: DOL does not require a new LCA for these employees; however, the best practice is for the LCA to be posted in 2 locations at their home office for 10 business days; the employee to complete a Posting Certification; and the Posting Certification to be added to their LCA Public Access File. A list of MSA’s can be found here, where you can link to the relevant MSA for a list of towns included (for reference, the Boston area MSA is Boston-Cambridge-Nashua, MA-NH). Please note that there has been unofficial comment from DOL that they will not enforce the posting requirements at private residences, but we do not have any official guidance confirming that.
- H-1B employees working remotely outside the MSA of their worksite: The DOL’s Short-Term Placement rules allow an employee to work outside the MSA for up to 30 workdays in a calendar year, or 60 workdays in a calendar year if the employer can show that the employee maintains a permanent presence at the LCA-designated worksite, hasn’t moved away, and will spend a substantial amount of time at the worksite during the remainder of the year. Considering the circumstances, the 60 workday rule will be applicable to most circumstances. Until we have guidance to the contrary from DOL, employers will be required to file new LCAs and amended H-1B petitions on behalf of these employees before the end of the 60 workday period. Please contact our office by the end of 30 workdays so we can discuss your options.
- Creation of Public Access Files: The LCA regulations require employers of H-1B employees to maintain a Public Access File (PAF), which DOL can review when investigating a complaint. The PAF should be set up and made publicly available for inspection within 1 day of the filing of the LCA with DOL. The ability to comply with this 1-day requirement likely will be challenging for employers whose staff is working remotely. Please note that electronic PAFs are acceptable, so employers should be able to save PAF documents and updates electronically and remain in compliance.
- Reduction in Wages/Hours: If H-1B employees are in a nonproductive status due to a “decision by the employer,”, they must continue to be paid their full salary listed in the LCA and H-1B petition. Part-time employees in nonproductive status must be paid at least the number of hours indicated on the petition. Historically, DOL has not forgiven failure to comply with these “benching rules” due to annual plant shutdowns, holidays, or other events that equally affect both U.S. workers and H-1B employees. While the impact due to COVID-19 is unprecedented, employers are cautioned against reducing the wages or hours of H-1B employees without first consulting with an RSST Law Group attorney. If such changes are required, then an amended petition will need to be filed with USCIS. Please note that if employees are unable to work (or their hours are reduced), but are continuing to be paid per the LCA and H-1B petition, their H-1B status should remain secure and the employer should remain in compliance. These scenarios are similar to “paid leave,” which is permissible as long as H-1B workers are treated equally to other workers.
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DOL requires a hard copy posting of the Notice of Filing (NOF) for PERM applications. If your worksite remains open, posting can proceed. However, if your worksite is closed, then posting the NOF at that site will not fulfill the notice requirement.
Please note that, in the absence of timing concerns, it is advisable for employers to put these cases on hold. However, if a PERM case must move forward, the NOF should be posted at the actual worksite for 10 consecutive business days and we recommend that employers also provide electronic notice, which can include a direct email to all employees and posting on a company intranet, thus complying with the spirit of the regulatory requirement.
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Form I-9s, E-Verify, and Compliance
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At this time, DHS has not offered any official guidance to employers relating to hiring practices and compliance issues. On March 16, the American Immigration Lawyers Association sent a letter to DHS requesting guidance and flexibility in the Form I-9 verification, E-Verify, and compliance process, and we will continue to provide updates as they come in.
In the meantime, we recommend that you complete the I-9 verification process remotely within the required timelines, preferably using Skype or another conferencing service to allow you to review the documents while talking to the employee. Once your workforce is back in the office, you should follow up with each employee and review the original documents. We recommend that you document this process in writing.
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Impact on Nonimmigrant Employees
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- Furloughs & Unpaid Leaves of Absence: If an employer is required to shut down operations due to state or licensing authority mandates and the employer’s benefits policy allows for unpaid leaves of absence for both U.S. and H-1B workers, then there continues to be an employer-employee relationship and the H-1B worker would not be failing to maintain H-1B status.
- Layoffs: In the event of layoffs, employers have certain termination obligations, which may include withdrawing certified LCAs (where applicable), notifying USCIS, and offering to pay the reasonable return transportation to the employee’s last country of residence. We recommend that you inform your RSST attorney of any layoffs immediately.
- Grace Periods: Nonimmigrant workers in E-1, E-2, E-3, H1B, H1B1, L-1, O-1, and TN status are eligible for a grace period of up to 60 days following the loss of employment to leave the United States, change their status, or have another employer file a petition on their behalf. Please note that most foreign workers are not entitled to unemployment benefits.
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Cancellation of Interviews and Rescheduling of Appointments
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On March 17, USCIS announced the suspension of all routine in-person interviews, InfoMod, biometrics and asylum appointments at USCIS field offices until at least April 1. It has created a
USCIS Response to the Coronavirus Disease 2019 (COVID-19) page on its website that includes links to USCIS Office Closings, Field Office Appointments and Rescheduling, Application Support Center (ASC) Appointments and Rescheduling, Asylum Appointments, and Naturalization Oath Ceremonies. USCIS field offices will send notices to applicants and petitioners with scheduled appointments and naturalization ceremonies impacted by the closures and, when the interview is rescheduled, they will send new notices.
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Restrictions on Travel to the United States
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The Trump administration has issued proclamations suspending travel to the United States as intending immigrants or nonimmigrants from China, Iran, 26 Schengen countries, the United Kingdom, and Ireland. The proclamations will remain in effect until terminated by the President. The proclamations apply to individuals who were physically present within any of those countries during the 14-day period preceding their entry or attempted entry into the United States. However, the travel restrictions do not apply to U.S. citizens, lawful permanent residents (LPRs), spouses of U.S. citizens or LPRs, any person who is the parent or legal guardian of a U.S. citizen or LPR who is unmarried and under the age of 21, and any person who is the sibling of a U.S. citizen or LPR, provided that both are unmarried and under the age of 21, among other select exceptions.
Flights from these regions have been directed to 13 airports in the U.S., where health protocols have been implemented to account for treatment and handling of individuals who might have contracted the virus. All U.S. citizens, LPRs, and others exempt from the proclamations who are arriving from travel-restricted countries into designated airports are being requested to self-quarantine for 14 days upon arrival to their final destinations. More information from DHS can be found
here.
Boston's Logan Airport: Beginning March 14, 2020, Logan airport began implementing CDC-enhanced public health screening services and protocols for specific flights. In particular, U.S. Citizens and LPRs, their relatives, and other qualified travelers flying into the United States via Logan will undergo health screenings.
U.S. - Canada Border: Earlier today, it was announced that the border between the United States and Canada will be closed to all non-essential travel. We anticipate more details will be announced in the coming days.
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Certain consular posts have begun cancelling visa appointments and temporarily suspending visa services. The Department of State has compiled a
list of embassy websites for country-specific information. Of note, U.S. Mission India has cancelled all immigrant and nonimmigrant visa appointments from March 16, 2020 onward. Mission India announced that once regular consular operations resume, appointments will be made available and applicants will be able to reschedule.
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Visa Waiver / ESTA Program
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U.S. Customs & Border Protection (CBP) has made a request for Satisfactory Departures available for participants in the Visa Waiver/ESTA program who were admitted to the United States through John F. Kennedy International Airport, NY (JFK) and Newark Liberty International Airport, NJ (EWR) and now are unable to depart before their current period of admission will end because of COVID-19. VWP/ESTA visitors can contact the Deferred Inspections office at JFK, Monday – Friday, 9am to 4pm ET and request Satisfactory Departure for up to 30 days. Visitors and their attorneys are permitted to request Satisfactory Departure if the individual’s period of stay will expire in 14 days or less from the day they contact JFK Deferred Inspection.
At the present time, the CBP Deferred Inspection office at Boston Logan has confirmed that they will review and grant Satisfactory Departure on a case by case basis.
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RSST's Continued Operations
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RSST Law Group is committed to providing our clients with continued support for your immigration needs during this time. Please reach out to either of us if you have any concerns in this regard.
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As everyone is aware, this is an evolving situation which we are monitoring closely. Should additional information arise which could impact the processing of immigration cases, either by our office or the government, we will let you know.
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Sincerely,
Rhonda Tietjen & Heidi Snyder
Partners, RSST Law Group
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