COVID-19 and Current Immigration Law Landscape
COVID-19 has disrupted much of the workforce and millions of employees are now working from home. Please see below for a summary of some recent developments in response to COVID-19.
Recent Executive Order
With recent news that the current administration plans to issue an executive order temporarily suspending immigration, the immigration law landscape is quickly changing. Please contact us if you have any concerns about current and/or future immigration cases.
Moreover, the American Immigration Lawyers Association (AILA) has been closely following the latest tweet from President Trump announcing his plan to sign an order to “temporarily suspend immigration into the United States.” To date, the White House has issued no further details as to the scope and breadth of the proposed Executive Order. AILA urges the White House and agencies to implement rational, policy-based measures that promote the public health and economic interests of our country during this national crisis rather than resort to distraction and political theater.
Marketa Lindt, AILA President noted, “The latest announcement to suspend immigration is not a legitimate policy plan to respond to the current COVID-19 crisis. At this critical time, we need to focus our time and resources on policies that spur innovation and economic growth and that promote the health and safety of the American people
A rational immigration policy is a critical component of successfully addressing our nation’s public health needs and spurring an economic recovery.”Ben Johnson, AILA Executive Director, added, “Unfortunately, the President’s tweet is not a surprise. In the face of growing questions and criticism about his handling of the COVID-19 crisis, it was only a matter of time before President Trump resorted to distraction, blame, and fearmongering. The heroes of this crisis include the agriculture workers who have kept us fed, the healthcare workers saving lives, the scientists and researchers searching for a cure, the factory workers and truck drivers providing critical supplies. Regardless of where we were born, we all have an important role to play in building a better future. Now is the time for us to stand shoulder to shoulder and work toward the day that this crisis is behind us. Measures that isolate America won’t make America stronger; fear and division can’t take the place of unity and determination.”
Temporary Remote Work for H-1B and E-3 Visa Holders
The Department of Labor (‘DOL’) released an FAQ guide for complying with notice requirements for H-1B visa petitions and underlying Labor Condition Applications (‘LCA’) during COVID-19. The contents are summarized below with additional guidance from the American Immigration Lawyers Association (‘AILA’). An H-1B worker’s employment is specific to the worksite listed on the LCA and requires notice. To comply with DOL regulations, employers must act prior to changing the worksite location.
- If there are no material changes to the terms of H-1B employment (e.g., job duties, salary, etc.) and a new/home worksite falls within the same geographic area and normal commuting distance (can be up to approximately 50 miles) of the original worksite noted on the LCA, then the certified LCA or a posting notice must be posted in two conspicuous places at the new/home worksite for 10 days. Posting must occur prior to the H-1B worker commencing employment at the new/home worksite. However, given COVID-19 impact, DOL stated that “notice will be considered timely when the posting is placed as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite location.”Please speak to us if you need this posting notice.
- If the new/home worksite falls outside of the geographic area and normal commuting distance of the original worksite noted on the LCA, then the following rules may apply:
- There is a DOL Short-Term Placement Rule whereby employers may place H-1B workers at a worksite not listed on its approved LCA for up to 30 workdays in aggregate each calendar year (if some days have already been used under this option, then an employer will not have the full 30-day period for COVID-19 purposes).
- “Workdays” are defined as actual days worked and do not include weekends and holidays (30 days could equate to at least six weeks of work at a temporary location).
If there are material changes to employment, or the COVID-19 quarantine lasts longer than 30 workdays and the short-term placement rule is exhausted, then the employer must file a new LCA with the DOL to cover the new/home worksite and comply with all LCA notice requirements. This means that an amended H-1B petition must also be filed with USCIS.
H-1B Non-Productive Status
The regulations require that H-1B workers be paid their regular wages, even while in a nonproductive status, unless the nonproductive period arose due to conditions unrelated to the employment and was taken at the employee’s voluntary request.
The regulations require employers to pay H-1B workers in periods of mandatory company-wide furloughs. Unless otherwise prohibited by state law or the employer’s specific policy, employers may require furloughed H-1B workers to use their accrued paid time off, so long as workers are not required to do so before taking any leave for which they may be eligible under the paid sick leave provisions of the new Families First Coronavirus Response Act.
If the furlough is prolonged, employers are still expected to pay the regular H-1B salaries through the furlough period. Alternatively, if the employer chooses to terminate the employee, the employer must offer to pay for reasonable costs of return transportation abroad for the discharged worker if they decide to return to their home country.
The employer is required to pay the wages certified by the DOL in the LCA. An employer must file an amended H-1B petition (Form I-129) to reflect “any material changes in the terms and conditions of employment or training or the alien’s eligibility as specified in the original approved petition,” including reduction of H-1B work from full-time (35 hours or more per week) to part-time. If an employer changes an employee to a part-time position, this reduction in hours would require the employer to obtain a new LCA from the DOL and file an amended H-1B petition with USCIS, setting minimum hours worked and the prevailing hourly wage.
Company-Wide Salary Reductions
While the regulations do not specifically address across-the-board salary reductions, the American Immigration Lawyers Association (‘AILA’) did raise a related question to USCIS on this topic in 2003. AILA asked USCIS to confirm if an amended petition would be required where, due to across-the-board salary cuts, an H-1B beneficiary earned less than the offered salary stated on the H-1B petition filed with USCIS, but still above the prevailing wage certified on the LCA.
USCIS consulted with the DOL, providing the following answer:
“The DOL is sensitive to the fact that wages can and sometimes do go up and down based on economic conditions. In the circumstance described in your question, there would be no need for a new LCA or a new I-129 petition provided that the employer was still paying the “required wage” [meaning the higher of the applicable prevailing wage or actual wage]. Any change in the beneficiary’s wage rate must be disclosed in the next H-1B petition filing with [USCIS]. It is important that any wage change be documented in the employer’s LCA public disclosure file and disclosed to the [USCIS] in the next H-1B filing.”
We believe that an argument can be made that so long as the employee is still being paid above the prevailing wage for the position, a new H-1B visa application is not required.
60-Day Grace Period Permitted After Employment Ends
E-3, H-1B, H-1B1, L-1, O-1 and TN nonimmigrant workers have been given a grace period of 60 days after their employment ends. This 60-day grace period gives the employee time to tie up their affairs, and make plans to leave the United States, or provide an opportunity to transition to another employer who can file an extension or change of status within the 60-day period. Also, the employee could potentially change to some other status on his or her own, such as to F-1, after enrolling in a school, or a B-2 visa to remain in the U.S. as a visitor.
Can the Employer Rehire the H-1B Employee Within 60 Days of the Termination?
If the H-1B worker is still within the validity period under H-1B classification, then arguably this worker can resume employment with the same employer. The argument could be made that the worker never lost status during that 60-day grace period, and if joining the same employer, may not need to file an extension with the same employer.
However if the employer laid off the H-1B worker, and did not notify USCIS regarding the termination, the employer could still potentially be liable for back wages under its obligation to pay the required wage under the Labor Condition Application for failing to effectuate a bona fide termination. Therefore, if the employer notified the USCIS, which resulted in the withdrawal of the H-1B petition, the same employer would need to file a new H-1B petition within the 60-day grace period. Please speak to us about this if you plan to rehire your H-1B visa employee during the 60-day grace period.
An H-1B/E-3 Employee’s Voluntary Request for Leave
An employer is not required to pay the required wage to an employee in non-productive status, when the employee is non-productive because of the employee’s voluntary request and convenience, such as taking an extended holiday or caring for ill relative, or because they are unable to work. However, the employer is still required to pay the wage if the employee’s non-productive period was subject to payment under the employer’s benefit plan or other statutes such as the CARES Act, Family and Medical Leave Act (29 U.S.C. 2601 et seq.) or the Americans with Disabilities Act (42 U.S.C. 12101 et seq.).
While leave based on a COVID-19 illness, or related need to quarantine, will also be considered a leave upon the behest of the employee, employers will most likely need to treat H-1B workers in the same way as they would with other employees under their COVID-19 leave policies, and will also be subject to the CARES Act that guarantees extended paid leave to all employees relating to COVID-19 illness or quarantine.
So long as the H-1B worker is employed, being on leave, paid or unpaid, will not undermine their ability to maintain H-1B status. The DOL may investigate whether the employee’s request for leave is genuine. This leave should not be used in lieu of the employer’s inability to pay the required wage due to lack of work. This situation would be viewed as a decision by the employer to place the worker in unproductive status, thus potentially exposing the employer to sanctions.
DOL Investigations and Penalties for Non-Compliance
Employers who fail to comply with H-1B wage requirements may be subject to the following penalties:
- Civil penalties of up to $7,846 per violation
- Back wages as stated in the LCA to be paid to H-1B employees
- Debarment from use of the H-1B program
- Other administrative remedies as appropriate
These penalties typically result from a DOL investigation triggered by a complaint filed by an employee. The DOL’s Wage and Hour Division has stated that investigations may also arise in the following contexts:
- DOL receives specific credible information from a reliable source (other than a complainant) that the employer has failed to meet certain LCA conditions, has engaged in a pattern or practice of failures to meet such conditions, or has committed a substantial failure to meet such conditions that affects multiple employees;
- The secretary of labor has found, on a case-by-case basis, that an employer (within the last five years) has committed a willful failure to meet a condition specified in the LCA or willfully misrepresented a material fact in the LCA. In such cases, a random investigation may be conducted; or
- The secretary of labor has reasonable cause to believe that the employer is not in compliance. In such cases, the secretary may certify that an investigation be conducted.
Eligibility for Unemployment Benefits
Although one must look at each specific state’s rules, generally speaking, H-1B visa holders cannot claim unemployment benefits because they will not be able to work in the future due to the loss of their status as a result of the loss of the job. The legal status of an H-1B and other workers is based on employment at a specific employer, and once the worker is terminated, they are not able to work in the future due to lack of that status.
This could be different for an H-4 spouse. If an H-4 spouses claims unemployment benefits, they will likely not be impacted by the new public charge definition as unemployment is not a public benefit. One has earned the unemployment insurance by contributing to it while employed, and the H-4 spouse can potentially claim unemployment benefits, if the H-1B visa spouse maintains status.
Students on OPT/STEM OPT
An F-1 student working pursuant to post-graduation OPT, will have 90 days of unemployment before being considered to be in violation of their status. An F-1 student working pursuant to a STEM OPT will have 150 days of unemployment until considered to be in violation of their visa status. OPT students need to inform the Designated School Officer within 5 days of becoming unemployed and speak to the school regarding additional information.
I-9 and E-Verify
DHS is relaxing certain guidelines on Form I-9. DHS will allow employers to review documents remotely to complete Section 2 of the I-9 form. Employers can now inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2. Employers also should enter “COVID-19” as the reason for the physical inspection delay in the Section 2. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate. These provisions may be implemented by employers for a period of 60 days from the date of this notice OR within 3 business days after the termination of the National Emergency, whichever comes first.
If you choose to continue to use an authorized representative, please remember that you are responsible and liable for that person completing the Form I-9 correctly. Please review for additional details: https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance
E-Verify Case Creation and Delayed Tentative Nonconfirmations
Employers may still create cases for new hires; if this is delayed, ‘COVID-19’ must be entered as a reason. In the case of a Tentative Nonconfirmation (‘TNC’) and because Social Security Administration (‘SSA’) offices are closed, the timeframe to resolve TNCs will be extended. Because of the extension given, employers may not take any adverse actions against the employee if the E-Verify case has a TNC or is in an interim case status. Please see: https://www.e-verify.gov/about-e-verify/whats-new
Generally speaking, L-1, TN, and O-1 nonimmigrants may work from home for brief periods of time without requiring an amended petition.
Updates from USCIS
Premium Processing – Expedited Processing – is Suspended
Premium processing has been suspended for all I-129 and I-140 petitions. This means that H-1B transfers and extensions (along with O-1, L-1, and TNs, among others, filed with USCIS) will not be approved in an expedited manner. The processing times can be between 2-10 months for an H-1B, for example, and the processing times vary between service centers.
This means that H-1B visa transfers will be delayed. If an employee needs the I-140 approval for a 3-year H-1B extension, that will also be delayed.
Extensions of driver’s licenses may be denied if that state will not extend due to COVID-19.
USCIS Offices Closed Until May 4
All USCIS offices in the United States will be closed including field offices and Application Support Centers. At the moment, the USCIS Service Centers are still open. This means that biometrics appointments, adjustment of status interviews, and naturalization interviews for example, will be postponed until USCIS reopens its offices. This date has been set for May 4th currently.
USCIS announced that it will accept prior captured biometrics for EAD card extensions.
USCIS Will Accept Copies of Signatures for Petitions and Applications
USCIS announced that it will accept signatures on forms that have been scanned, faxed, or photocopied. The copy or scan must be made from an original signature. The original signed document must be retained in case USCIS wishes to request the original at a later date. At the moment, there is no end date to this revised policy. This has not yet been extended to PERM ETA 9089 forms.
60-Day Extension Granted to Respond to Requests for Evidence Issued After March 1, 2020
On March 30, 2020, USCIS announced a 60-day extension of the deadline for responses to requests for evidence (RFEs) and notices of intent to deny (NOIDs) dated between March 1 and May 1, 2020. The USCIS now has clarified that this flexibility also applies to certain notices of intent to revoke (NOIR) and notices of intent to terminate (NOIT) regional investment centers, as well as certain filing date requirements for Form I-290B, Notice of Appeal or Motion.
CBP Will Extend ESTA Pursuant to a Request for Satisfactory Departure
For foreign nationals who arrived in the United States on their visa waivers, using the Electronic System for Travel Authorization (‘ESTA’), U.S. Customs and Border Control (‘CBP’) is allowing those travelers to request Satisfactory Departure at the port of entry if there are COVID-19 issues preventing the person from leaving in a timely manner. If Satisfactory Departure is granted, an extension of 30 days should be given, and the person may not be considered to have violated any overstay provisions.
If you have a foreign national in the United States as a business visitor who entered in ESTA, he or she may not be able to depart the United States prior to their expiration because of travel restrictions. In this case, the person may see if CBP at their port of entry will adjudicate a Satisfactory Departure request.
Border between U.S. and Canada and U.S. and Mexico Closed
The border between the United States and Mexico has been temporarily closed for nonessential traffic. This follows the closing of the U.S./Canada border earlier.
The Department of State Has Suspended Routine Visa Services at All U.S. Embassies and Consulates
On March 20, 2020, the U.S. Department of State Bureau of Consular Affairs Visa Office suspended routine visa services:
- The Department of State is suspending routine visa services at all U.S. Embassies and Consulates. Embassies and consulates will cancel all routine immigrant and nonimmigrant visa appointments as of March 20, 2020.
- As resources allow, embassies and consulates will continue to provide emergency and mission critical visa services. The overseas missions will resume routine visa services as soon as possible but are unable to provide a specific date at this time.
- Services to U.S. citizens continue to be available. More information is available on each Embassy’s website.
- This does not affect the visa waiver program. See https://esta.cbp.dhs.gov/faq?focusedTopic=Schengen%20Travel%20Proclamation for more information.
- Although all routine immigrant and nonimmigrant visa appointments are cancelled, the Machine-Readable Visa (MRV) fee is valid and may be used for a visa appointment in the country where it was purchased within one year of the date of payment.
- Applicants with an urgent matter and need to travel immediately should follow the guidance provided at the Embassy’s website to request an emergency appointment.
Please see https://www.usembassy.gov/ for more information.