What Employers Need to Know About COVID-19 and H-1B Workers
April 3, 2020 – Department of Labor (DOL) regulations require employers to abide by the terms and conditions of the H-1B visa program, including all DOL and U.S. Citizenship and Immigration Services (USCIS) guidelines. With the sudden changes brought about by the COVID-19 pandemic, employers are well advised to re-examine their obligations under the Labor Condition Application (LCA) concerning payment of the required wage, full-time vs. part-time status of employees, and employees working from remote locations. Note: these regulations apply to E-3 workers as well.
1. Does an employer need to continue to pay the required wage set forth in the LCA?
In light of COVID-19, employers are asking what happens should they decide to suspend, furlough, layoff, reduce hours, or otherwise render their employees unproductive during the crisis.
Non-productive status is defined as any time during the validity of the LCA and H-1B petition where an employee is unable to work. When an employee is in a non-productive status due to a decision of the employer (e.g., due to a lack of work), per 20 CFR 655.731(c)(7)(i), the employer continues to be obligated to pay the required wage. On the other hand, an employer is not required to pay the required wage to an employee in non-productive status, when the employee is non-productive at the employee’s voluntary request and convenience (e.g., touring the United States or caring for an ill relative) or because they are unable to work (e.g., maternity leave or an automobile accident that temporarily incapacitates the nonimmigrant) due to a reason that is not directly work related and required by the employer. Of course, per 20 CFR 655.731(c)(7)(ii), the employer would still have to pay the required wage if the employee’s non-productive period was subject to payment under the employer’s benefit plan or other statutes such as the Family and Medical Leave Act (FMLA) (29 U.S.C. 2601 et seq.) or the Americans with Disabilities Act (ADA) (42 U.S.C. 12101 et seq.).
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ICE Temporarily Relaxes I-9 Employment Verification Rules Due to COVID-19 Crisis
March 23, 2020 – U.S. Immigration and Customs Enforcement (ICE) announced it will permit employers to electronically review Form I-9 employment verification documents, which verify whether an employee is authorized to work in the United States, if the business has implemented a teleworking policy due to the virus.
ICE requires employers to examine certain documents in person, but in light of the COVID-19 outbreak, the agency said employers can conduct the in-person review once businesses resume normal operations.
The agency also gave employers an extra 60 days to respond to I-9 audits if they were served with a Notice of Inspection (NIF) in March, saving employers and their attorneys from having to scramble to collect physical documents at a time the Centers for Disease Control and Prevention is urging Americans to stay home.
Click here to view ICE’s announcement about flexibility in requirements related to Form I-9 compliance.
USCIS Announces Temporary Suspension of Premium Processing for All I-129 and I-140 Petitions Due to the Coronavirus Pandemic
March 20, 2020 – Below is a breaking advisory from U.S. Citizenship and Immigration Services:
“U.S. Citizenship and Immigration Services today announced the immediate and temporary suspension of premium processing service for all Form I-129 and I-140 petitions until further notice due to Coronavirus Disease 2019 (COVID-19).
Effective today, March 20, 2020, USCIS will not accept any new requests for premium processing. USCIS will process any petition with a previously accepted Form I-907, Request for Premium Processing Service, in accordance with the premium processing service criteria. However, we will not be able to send notices using pre-paid envelopes. We will only send batch-printed notices. Petitioners who have already filed a Form I-129, Petition for a Nonimmigrant Worker, or Form I-140, Immigrant Petition for Alien Workers, using the premium processing service and who receive no agency action on their case within the 15-calendar-day period will receive a refund, consistent with 8 CFR 103.7(e). We will notify the public with a confirmed date for resuming premium processing.
USCIS will reject the I-907 and return the $1,440 filing fee for all petitions requesting premium processing that were mailed before March 20 but not yet accepted.
This temporary suspension includes petitions filed for the following categories:
This includes new premium processing requests for all H-1B petitions, including H-1B cap-subject petitions for fiscal year 2021, petitions from previous fiscal years, and all H-1B petitions that are exempt from the cap. USCIS previously announced the temporary suspension of premium processing for FY 2021 cap-subject petitions and tentative dates for resumption of premium processing service. This announcement expands upon and supersedes the previous announcement.
Complying with Department of Labor Notice Requirements for H-1B Employees During a Quarantine
March 20, 2020 – As an increasing number of U.S. employers are offering their workforces the option or are requiring them to work from home for a temporary period due to the outbreak of coronavirus, questions arise related to whether H-1B workers can work from home, and if so, what notice of filing requirements apply and/or whether an amended H-1B petition must be filed with U.S. Citizenship and Immigration Services (USCIS).
What Type of Notice or Labor Condition Application Filing is Required to Allow H-1B Employees to Work from Home?
Department of Labor (“DOL”) guidance provides that the employer need not file a new Labor Condition Application (“LCA”) for an employee’s home location if it is within the same metropolitan statistical area (“MSA”) as the worksite(s) listed on the LCA. An MSA is defined as the area within normal commuting distance of the place of employment where the H-1B nonimmigrant is or will be employed. Therefore, if the H-1B worker’s home is within the same MSA as the employee’s normal worksite location, a new LCA need not be filed for the new worksite location.
While a new LCA filing is not required, employers should take the conservative approach of physically posting a LCA notice of filing at the employee’s home for 10 consecutive business days.
If the employee’s home is outside the MSA in which his or her worksite is located, then the following rules apply:
Is an Amended H-1B Petition Required to Allow an H-1B Employee to Work from Home?
Per USCIS guidance, an amended H-1B petition is only required if the employer is required to file a new LCA. Thus, this requirement would come into play following exhaustion of the “short term placement” provision, and only for employees who live outside of the MSA where they work.
Please note that in a letter dated March 16, 2020, the American Immigration Lawyers Association (“AILA”) requested that USCIS suspend or waive the requirement that employers must file an amended or new H-1B petition when a new LCA is required due to a change in the H-1B worker’s place of employment if the change in workplace is in response to the COVID-19 outbreak.
*The information for this client alert was sourced from the American Immigration Lawyers Association.
Ulmer’s Immigration Law Group is closely monitoring developments related to the COVID-19 outbreak and is prepared to support you and your organization during these uncertain times. Please reach out to our immigration attorneys if you have any questions.