Guidance for Employers Regarding Immigration Impacts of COVID-19

Many employers are urging or requiring their employees to work remotely from home in an effort to “flatten the curve” of the Coronavirus (COVID-19) infection rate.  In addition, some localities, including the San Francisco Bay Area, have made WFH (working from home) mandatory. This alert addresses what employers must do to ensure that their H and L status employees comply with their specific worksite requirements, PERM Job Notice posting requirements, ongoing I-9 Employment Verification compliance requirements, and USCIS office hour and closure details.

Worksite Compliance for Remote H-1B Employees

Employers are not required to file amended H-1B petitions or Labor Condition Applications (LCAs) on behalf of H-1B employees who will continue to fill their roles remotely so long as their remote work location is within normal commuting distance of the work address that is listed on their original H-1B petition and LCA. Normal commuting distance is interpreted as up to 50 miles from the worksite location listed on the employee’s H-1B petition and LCA according to Department of Labor (DOL) regulations, and up to 70 miles one way from the worksite according to case law.

H-1Bs and LCA Posting Requirements

The DOL requires that employers post LCAs at all worksites where an H-1B beneficiary will work. This applies to the employee’s main worksite but does not technically include any temporary work-at-home locations. We recommend that employers post hard-copy LCAs at the main business worksite for at least 10 days if at all possible. If employers have implemented WFH policies and have no staff physically in the office, we recommend that they post LCAs electronically. The DOL rule is that Approved modes of electronic notification may be by “any of the means [the employer] ordinarily uses to communicate with its workers about job vacancies or promotion opportunities, including through its ‘home page’ or ‘electronic bulletin board’ to employees” with access to such resources (although workers without electronic access must still be provided with a “hard copy notice”). So employers may post the LCA on a commonly used the company “intranet” or on an electronic bulletin board accessible to all employees, may send the LCA by email to employees in the same occupational occupation, may email a link to the LCA posting on a shared drive with employees in the same occupational occupation, or may email or pro-actively circulate the information through electronic messages, such as an employer newsletter.  Please refer to the attached Field Assistance Bulletin from the U.S. DOL’s Wage and Hour Division for further details.

Compliance for L-1 Status Employees

Employers are not required to file amended L-1A or L-1B petitions on behalf of L-1 status employees who will temporarily WFH during the COVID-19 outbreak. However, employers should strive to keep the employee’s primary worksite location “open” during any temporary office closures so that it can company with the USCIS administrative site visit and verification program. If this is not possible, we recommend at a minimum that the company leave contact details of a company representative at the L-1 employee’s primary worksite so that USCIS Fraud Detection and National Security (FDNS) may contact that representative during any unannounced worksite visits.

Those employees who were granted L-1 status pursuant to a company’s Blanket L-1 petition and who would normally renew their L-1 status at a U.S. consular post abroad may not be able to do so due to travel restrictions and widespread visa appointment cancellations around the world. Employers may need to instead file individual L-1 petitions with USCIS on behalf of such employees. Employers should anticipate a high level of scrutiny from USCIS on these individual L-1 petitions that they typically would not experience from a U.S. consular post.

PERM and Job Notice Posting Requirements

For PERM labor certification purposes, the DOL requires employers to physically post two hard-copy Job Notices for at least 10 consecutive business days in “conspicuous places where the employer’s US workers can readily read the posted notice on their way to or from their place of employment.” If employers are requiring that all of its employers temporarily WFH until the COVID-19 virus outbreak disappears, it is a best practice not to count those WFH days for the 10 day Job Notice posting requirement since the office is not “open” on those days.

PERM and Possible Layoffs and RIFS

If an employer must conduct a reduction in force or layoff involved in a PERM-sponsored position (or related position) within six months before the filing of the labor certification application, the employer is required to notify all laid-off US workers who may be potentially qualified for the PERM-sponsored position. In this situation, employers will need to document its notification and recruitment efforts in a detailed recruitment report for review by DOL officials. Employers also have the option of delaying PERM recruitment for the PERM-sponsored position for six months; however, this delay may jeopardize an H-1B employee’s ability to extend his or her status for longer than six years. Our firm builds in a “cushion” between the receipt of the prevailing wage determination and the PERM application filing deadline so that we can mitigate the possibility of these types of filing issues from occurring. We continue to monitor the “last file” date and will work with individual clients to handle any posting issues in a timely manner.

I-9 Employment Eligibility Verification and E-Verify Compliance Requirements

Employers or their authorized agents are required to complete the I-9 employment verification process within three-days of an employee’s start date. This verification must be done in-person. Employers are also required to complete an I-9 reverification before a foreign national’s temporary work authorization expires. Companies that are enrolled in the federal E-Verify program are also immediately required to confirm employee’s eligibility to work in the United States.

Starting May 1, 2020, Immigration and Customs Enforcement (ICE) requires employers to use its new 10-21-19 version of the Form I-9. Employers are permitted to use this new version of the form or the old version before that date. Existing I-9 rules grant broad permission for employers to designate an authorized representative to review the documents and complete page 2, including personnel officers, foremen, agents, or notaries public. However, one interesting change in the new version of the Form I-9 is that DHS confirms in the instructions that an employer’s authorized representative can be “any person you designate to complete and sign Form I-9 on your behalf.”  The new Form I-9 arguably broadens an employer’s options for designating an authorized representative.

In the state of California, special rules apply. In California, the only individuals who may assist employers with completing immigration forms (such as the Form I-9) are licensed attorneys, individuals authorized under federal law to provide immigration services, and individuals qualified and bonded as an immigration consultant under California law (Business & Professions Code, Sections 22440, 22441). In California, the above state law requirements would continue to control.

In the situation that remote employees are unable to physically travel to a company’s headquarters office to complete I-9 verification due to a temporary company-wide WFH policy, please contact us for further assistance. Other options include postponing an employee’s start date or take a chance and attempt a complete I-9 verification via video, a method that has not yet been approved.

FYI, this link from US Immigration and Customs Enforcement (ICE) provides information on how the government audits I-9s and how the fee penalty structure works for I-9 violations. This may be useful to assess potential fines/impact of completing/reverifying I-9s via video.

USCIS Response – Offices Closures and Appointment Rescheduling

USCIS has closed some of its offices and temporarily changed open hours for some of its offices. USCIS maintains updated office closure information on its website.

USCIS has also implemented a generous rescheduling policy in light of the COVID-19 pandemic. It will offer appointment rescheduling without penalty to anyone who has traveled internationally within 14 days of their appointment; anyone who thinks that they may have been exposed to COVID-19; and anyone who is experiencing any kind of flu-like systems including runny nose, headache, cough, sore throat, or fever. All foreign nationals wishing to reschedule for their appointments should follow the rescheduling instructions on their appointment notices. Foreign nationals who fall ill with COVID-19 and therefore unable to appear for a scheduled interview, respond to a request for evidence or USCIS notice may present evidence of their infection as the reason for their delay.

USCIS Policy – Special Situations

Existing USCIS policy allows the agency to provide case-by-case discretionary relief to foreign nationals who are impacted by natural catastrophes and extreme situations such as the COVID-19 outbreak. This discretionary relief includes the excuse of delayed extension filings, delayed change of status application submissions, and delayed departures to foreign nationals who miss a deadline due to extraordinary circumstances that are beyond their control. Please note that employers continue to be subject to Form I-9, Employment Verification completion and E-Verify requirements, even in extraordinary situations such as the COVID-19 pandemic.

If you have any questions about this alert, please contact your McCown & Evans representative or email info@mccownevans.com.