Work from Home Scenarios due to Coronavirus (COVID-19), may require a review of companies’ H-1B or E-3 compliance

By Cole F. Heyer on Posted in Coronavirus, COVID-19, E-3, H-1B, Work at home

In almost every state, companies have instituted temporary work from home policies—or have been instructed by government authorities to institute such policies—in response to the coronavirus (COVID-19), in an effort to “flatten the curve” and stop the spread of the virus.  In so doing, companies that regularly employ H-1B and E-3 visa holders may need to review and revise compliance strategies to help avoid possible fines and penalties. An H-1B or E-3 visa holder is permitted to work at an identified worksite that is listed on a labor condition application that is certified by the U.S. Department of Labor (DOL) and included in an H-1B or E-3 petition that is filed with U.S. immigration authorities. Working at the identified worksite location is part of the terms and conditions of employment for the H-1B or E-3 visa holder, and changes to this worksite location, even for reasons outside of the employing company’s control, may still lead to penalties for non-compliance.

  1. The new, unintended worksite location is in the same area of intended employment as the normal worksite location. In response to COVID-19, the DOL released a “frequently asked questions” on March 20, 2020, that sought to address certain compliance issues concerning H-1B and E-3 visa holders. Specifically, in this FAQ, the DOL confirmed that if an H-1B or E-3 visa holder and employee moves to a new, unintended worksite location (including the employee’s home address) that is within the same area of intended worksite location, then the company and employer are not required to file a new labor condition application with the DOL that lists the new, unintended worksite location. Instead of filing a new labor condition application with the DOL, the company and employer must provide an electronic or hard-copy posting notice at the new worksite location for 10-calendar days. Normally, the notice must be provided before the H-1B or E-3 visa holder begins working at the new worksite location, but because many companies sent their employees home suddenly and without notice because of COVID-19, the DOL said that the new notice may be provided “as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite locations.”
  2. The new, unintended worksite location is not within the same area of intended employment as the normal worksite location. In situations where the new, unintended worksite location is not within the same area of intended worksite location, often meaning that the H-1B or E-3 visa holder is now working in a different county than his or her regular worksite location, then the company may take advantage of the short-term placement rule for up to 30 days, or possibly 60 days provided other conditions are met. According to the DOL’s FAQ, if the H-1B or E-3 visa holder will work at the new worksite location for more than 30 or 60 days, then the company must file a new labor condition application and a H-1B or E-3 amendment petition with USCIS before the 30 or 60-day period has elapsed. A company and employer’s failure to file the H-1B or E-3 amendment within the 30 or 60-day period may result in DOL investigations and/or penalties for failing to comply with the governing regulations.

Penalties may include civil penalties of up to $7,846 per violation, the award of back wages plus interest being paid to the H-1B or E-3 visa holder, and possibly debarment by the DOL from using the H-1B program for a temporary period or time or permanently.

USCIS Issues Limited Help to Employers Facing RFEs and NOIDs

By Dillon Colucci on Posted in AAO, Coronavirus, COVID-19, NOID, NOIR, NOIT, RFE, USCIS

On March 27, 2020 and March 30, 2020, USCIS announced limited help to employers facing requests for evidence (RFE) and notices of intent to deny (NOID) during the Coronavirus (COVID-19) pandemic. The announcement will permit employers who receive an RFE, NOID, Notice of Intent to Revoke (NOIR), Notice of Intent to Terminate (NOIT), or appealable decision within AAO jurisdiction dated (i.e. issued) between March 1 and May 1, 2020 to submit a response within 60 calendar days after the response deadline set forth in the notice.

While ostensibly designed to assist employers facing workflow and service issues, USCIS’ announcement is limited to notices or AAO appealable decisions which have been issued between March 1 and May 1, 2020. For instance, RFEs issued during this time period will not have due dates for approximately eighty-seven (87) days, or, in other words, none of these RFEs will have due dates until after the impact of the Coronavirus (COVID-19) pandemic is expected to dissipate. Some NOIDs, NOIRs, NOITs, and AAO appealable decisions issued between March 1 and May 1, 2020 will also be due during that time period because those notices generally require a response within approximately 30 days after issuance. However, NOIDs, NOIRs, NOITs, and AAO appealable decisions issued towards the ends of the March 1 to May 1, 2020 window will not be due until after May 1, 2020. Therefore, this announcement by USCIS largely does not affect employers who may be struggling to respond to these notices which are due anytime between March 1 and May 1, 2020, which is the time period wherein many employers are affected by stay-at-home or similar state and local orders.

Furthermore, it appears that, as a result of this policy, USCIS will not be adjudicating any responses to these notices until after sixty (60) calendar days have elapsed after the response due date. This indicates a surge in workflow for USCIS in late summer and early fall, as USCIS would also be adjudicating H-1B cap petitions in that same time period.

This announcement by USCIS follows several others due to the effects of the COVID-19 pandemic, including the suspension of premium processing, the acceptance of electronic signatures in lieu of wet signatures, and the closure of USCIS’ offices in the U.S. and worldwide.

COVID-19 and U.S. Immigration Updates: Considerations for Those Who May Be Stuck Abroad or Can’t Make a Scheduled Appointment

By Sylvia Sobczyk on Posted in Appointment, Coronavirus, COVID-19, Green Card, USCIS

The United States is now under a national emergency due to the COVID-19 epidemic. While USCIS remains open and is accepting all mail at the time of writing, it has canceled all in-person appointments, including interviews, biometrics and InfoPass appointments, through April 7, 2020. All appointments will be automatically rescheduled by USCIS when possible.

While all appointments are canceled through April 7, 2020, the closures may continue beyond this date. Track USCIS closures here.

Those with USCIS in-person appointments scheduled for March and April 2020 may check the website for closures before attending the appointment. If the location is not closed, but you cannot attend the appointment because you are sick or cannot travel back to the U.S., you may reschedule the appointment with USCIS using the instructions found on the notice.

Green card holders who are abroad and cannot currently travel back to the United States due to the COVID-19 epidemic may consider keeping evidence of U.S. ties for re-entry. As a green card holder, absences of more than 180 days to one year may create a presumption that you have abandoned your permanent resident status. This could lead to questioning at the border upon reentry to the United States. Therefore, you can carry evidence with you that you could not travel back to the United States due to the COVID-19 epidemic, as well as evidence that you have maintained ties to the United States, for example:

  • Maintain a residence in the U.S.  This can be through the ownership of a home or renting an apartment.
  • Maintain bank accounts, credit cards and investments in the U.S. to show financial ties.
  • Maintain insurance in the U.S., including home, health, and life insurance.
  • File U.S. tax returns.
  • Having utilities in the permanent resident’s name also helps, as does a driver’s license and car ownership.

Be prepared for questioning at the border, and be prepared to explain why you could not travel back to the U.S. in a timely manner. See the USCIS website page on maintaining your permanent resident status.

After returning to the United States, those permanent residents who anticipate having to stay abroad for extended periods of an aggregate of 180 days or more may consider applying for a reentry permit. An application for a reentry permit only can be done while physically present in the U.S., as reentry permit applications cannot be filed while abroad.

Closure Updates for U.S. Immigration Agencies and Restrictions on International Travel

By Kristen W. Ng on Posted in Closures, Coronavirus, COVID-19, Restrictions on International Travel, U.S. Consulates, U.S. Consulates and Embassies Closures, U.S. consulates/embassies, Uncategorized, USCIS, USCIS Closures

Update: USCIS Closure extends until at least April 7.

With the spread of COVID-19 and the attempt to prevent its spread, in addition to the travel bans in place by the President, U.S. government agencies are starting to shut down.  Furthermore, other countries are starting to follow suit and shut its borders in an attempt to contain the virus.

USCIS announced on April 3, 2020, that it will shut all its field offices, Application Support Centers, and asylum offices until at least May 3. This will affect procedures such as biometrics, adjustment of status interviews, oath ceremonies, etc. USCIS will still continue to provide emergency services. Those who had appointment notices will receive a new appointment notice for their schedule appearances. Please visit the USCIS website for more information.

There is no update yet regarding the closures of Service Centers, which process immigrant and nonimmigrant petitions.

U.S. Consulates and Embassies Closures

Due to the concern of COVID-19 spread, U.S. consulates and embassies around the world are beginning to either close, or severely limit its services. The current trend is that most U.S. consulates or embassies will close very soon. Please check with the location where you have an appointment before attending to confirm whether it is still offering services, or staying open. As of this date, the following have either closed, or have limited services, and we include the below list which is not comprehensive. Please check each consulate’s specific website.

Europe

  • United Kingdom
  • Ireland
  • France
  • Italy
  • Spain
  • Belgium
  • Greece
  • Germany
  • Hungary
  • Norway
  • Poland
  • Sweden
  • Switzerland
  • Albania
  • Andorra
  • Austria
  • Azerbaijan
  • Belarus
  • Bosnia
  • Bulgaria
  • Croatia
  • Cypress
  • Czech Republic
  • Denmark
  • Estonia
  • Finland
  • Iceland
  • Latvia
  • Liechtenstein
  • Lithuania
  • Netherlands
  • Romani
  • Russia
  • Serbia
  • Slovakia
  • Ukraine

Central America/ Americas

  • Mexico
  • Costa Rica
  • Panama
  • Barbados
  • Belize
  • Dominican Republic

Asia

  • Japan
  • Hong Kong/ Macau
  • India
  • Vietnam
  • South Korea
  • China
  • Armenia
  • Iraq
  • Israel
  • Kazakhstan
  • Kuwait
  • Kyrgyzstan
  • Lebanon
  • Oman
  • Qatar
  • Saudi Arabia
  • Tajikistan
  • Turkey
  • Turkmenistan
  • UAE
  • Uzbekistan

Africa

  • Algeria
  • Morocco
  • Nigeria
  • Togo
  • Tunisia
  • Zimbabwe
  • Rwanda
  • Gabon
  • Gambia
  • Benin
  • Burkina Faso
  • Dem Rep of Congo
  • Ethiopia
  • Ghana
  • Lesotho
  • Liberia
  • Malawi
  • Senegal
  • Sierra Leone
  • South Africa
  • Sudan

Pacific

  • Australia
  • Philippines
  • Indonesia
  • Malaysia

South America

  • Chile
  • Ecuador
  • Bolivia
  • Peru
  • Brazil
  • Paraguay
  • Colombia
  • Argentina
  • Venezuela

International Travel Considerations

The U.S. State Department has just issued an alert warning against ANY international travel for U.S. citizens.  Along with the United States, other countries are also putting travel restrictions in place. To check whether there are any issues with leaving the United States and entering another country, access the U.S. State Department Website.

DHS issues Guidance Relaxing Form I-9 Requirements

By Kristen W. Ng on Posted in Coronavirus, COVID-19, Department of Homeland Security, E-Verify, I-9

The Department of Homeland Security (DHS) has issued revised guidance on I-9 compliance in light of employer office closures around the country due to COVID-19. DHS announced that it will exercise its discretion to defer the physical presence requirement associated with completing Form I-9, where the employee must present physical documents to be examined by the person completing Section 2 of Form I-9 to demonstrate work eligibility.

Under the guidance, employers who are closing offices or taking precautions to limit physical contact will not be required to review the documents in person, but will need to inspect it remotely (via video, email, fax, etc.). The same rules still apply where the documents must be reviewed within three days of the employee’s start date. Employers, after reviewing the documents remotely, should complete Section 2 as normal.

Employers will then be required to review the documents in person within three business days of normal operations resuming. Employers will then “correct” the I-9 and should enter “COVID-19” as the reason for the physical inspection delay in Section 2 Additional Information field, and also add “documents physically examined” with the date of inspection.

Employers who wish to take this “remote review” option must provide written documentation of the remote onboarding and telework policy for each employee. This provision only applies to employers and workplaces that are operating remotely. For example, if there are employees physically present at a work location, there will be no exceptions and this provision will not apply. DHS will evaluate this on a case-by-case basis. Note that any audit of these I-9s in the future would use the “in-person” completed date as the starting point.

Also, note that employers may still designate an authorized representative to act on their behalf to complete Section 2, and can be any person the employer designates, though the employer will be liable for any violations in connection to the form or verification process. The authorized representative will still need to examine the documents physically.

The above relaxed guidelines may be implemented for the next 60 days (from March 20, 2020), or within three business days after the termination of the National Emergency, whichever comes first. Any Notice of Inspections served by DHS in March 2020 will automatically be granted a 60-day extension.

E-Verify

Case Creation:  Employers must still comply with creating cases for new hires within three business days from the date of hire.  The date of hire must be what is on the employee’s Form I-9.  If the case creation is delayed because of COVID-19, the employer should select “Other” from the drop-down list and enter “COVID-19.”

Tentative Nonconfirmations:  In addition, due to the shutdown of Social Security offices, E-Verify will extend the timeframe to resolve SSA Tentative Nonconfirmations (TNC).  This extension also applies to a limited number of DHS TNCs if the employee cannot resolve it due to public or private office closures.

During this time, if the E-Verify case is in an interim case status, the employer MUST NOT take any adverse action, even if this timeframe is extended.

Department of Labor Guidance Amidst COVID-19

By Kristen W. Ng on Posted in Coronavirus, COVID-19, Department of Labor, E-3, H-1B, LCA, PERM

The Department of Labor (DOL) has issued guidance regarding several immigration processes in light of employer office closures around the country due to COVID-19. Many of these issues include extending posting dates and filing deadlines. The DOL notes that it intends to remain fully operational, as its employees have teleworking capabilities, and that applications will continue to process as normal.  The FAQs are listed below; it affects H-1B, PERM, and E-3.

General Extensions:

Requests for extensions to deadlines may be submitted to the Office of Foreign Labor Certification (OFLC) for consideration. The FAQ states that these extensions of time and deadlines should be granted for items such as Requests for Information, Notices of Deficiencies, or Notices of Audit. If the deadline falls between March 13, 2020, and May 12, 2020, the employer’s response will be considered timely if received by May 12, 2020.

For PERM:PERM filing deadlines (due to recruitment expiration dates, for example), will be extended by 60 days. OFLC will accept recruitment completed within 60 days after the deadlines have passed, provided the recruitment was initiated within the 180 days preceding the president’s emergency declaration on March 13, 2020. Delayed recruitment must have started on or after Sept. 15, 2019, and the filing must be submitted by May 12, 2020.

For Administrative Review or Appeals: These requests must be submitted to the appropriate agency.

H-1B/ E-3 Guidance

  • Employees teleworking or moving to other worksite locations:  For these employees who are temporarily working in a location not approved on the LCA, provided that the location is in the same MSA, a new LCA is not required. If the employee moves to a location not in the same MSA, because of COVID-19, the notice will be considered timely if placed as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite location. Employers may also move employees using the short-term placement provisions in place. However, if there is a material change, amended petitions will still need to be filed.
  • LCA Postings for New or Continuing H-1B/E-3s: A hard-copy notice must still be posted prior to filing the LCA electronically. During the shutdown, employers may also consider electronic notices of an LCA filing, which means employers can use any means ordinarily used to communicate with its employees, including the website, electronic newsletter, intranet, or email. Individual direct notice via mail may also be used.

PERM Guidance

  • Notice of Filing (NOF) Posting:  Normally, the NOF is posted during the period of recruitment (between 180 and 30 days of filing Form ETA-9089). Because of the COVID-19 pandemic, OFLC will accept NOFs posted within 60 days after the deadlines have passed, provided that the recruitment was initiated within 180 days of March 13, 2020.

UPDATE – March 24, 2020:  The Department of Labor announced that from March 25, 2020 until June 30, 2020, it will send certified Form ETA-9089s via email to the employer or authorized agent or attorney.  The form must then be printed and signed for the subsequent I-140 petition filing. https://www.foreignlaborcert.doleta.gov/news.cfm

Suspension of Premium Processing for I-129 and I-140 Petitions

By Kristen W. Ng on Posted in Coronavirus, COVID-19, I-129, I-140, Suspension of Premium Processing

Effective March 20, 2020, USCIS will temporarily suspend premium processing for all I-129 petitions and I-140 petitions due to COVID-19.  For petitions filed prior to March 20, 2020, USCIS will process the petition accordingly, but if no action has been taken within the 15-day window, USCIS will refund the premium processing fee. In addition, USCIS will not use pre-paid mailers to return notices.

This temporary suspension includes petitions filed for the following categories, regardless of new or extensions of stay petitions:

I-129: E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-1, and TN-2.
I-140: EB-1, EB-2, and EB-3.

See the alert USCIS Announces Temporary Suspension of Premium Processing for All I-129 and I-140 Petitions Due to the Coronavirus Pandemic.

USCIS Will Accept Electronic Signatures

By Kristen W. Ng on Posted in Coronavirus, COVID-19, electronic signature, USCIS, Wet signature

Due to COVID-19, USCIS will accept benefit forms and documents without an original, wet signature for submissions dated after March 21, 2020, but with no announced end date. This means the document can be scanned, faxed, or photocopied from an original signature. USCIS notes that the documents with the original signatures must be retained if USCIS wishes to request it for adjudication.

See the alert USCIS Announces Flexibility in Submitting Required Signatures During COVID-19 National Emergency.

USCIS Encourages Rescheduling of Appointments Due to Sickness

By Kristen W. Ng on Posted in Coronavirus, COVID-19, U.S. consulates/embassies, USCIS

The USCIS website has links to its various field offices where biometrics and interviews take place around the country.  The website has now been updated to include a link that designates USCIS Office Closings.  This is helpful when there are last minute closures and a rescheduling notice has not been sent in time:  See USCIS office closings.

In addition, the USCIS website encourages applicants to consider canceling and rescheduling the USCIS appointment, whether it be for biometrics, or an interview.  To reschedule an interview, the instructions on the notice may be followed to put in a written request.  USCIS would like to ensure the safety of its employees and other clientele.  To that extent, USCIS is encouraging those who are ill, whether or not from COVID-19, to reschedule.  Other conditions include the following:

  • Have traveled internationally to any country outside the U.S. within 14 days of your appointment;
  • Believe that you may have been exposed to COVID-19 (even if you have not travelled internationally); or
  • Are experiencing flu-like symptoms (such as a runny nose, headache, cough, sore throat or fever).

Please visit the UCSIS webpage for more detail:  https://www.uscis.gov/about-us/find-a-uscis-office/if-you-feel-sick-please-consider-canceling-and-rescheduling-your-uscis-appointment

GT will continue to monitor closures of USCIS offices and U.S. consulates/embassies around the world as it affects our clients.

U.S. Extends Travel Restrictions to U.K. and Ireland – Department of Homeland Security Outlines New Re-Entry Process for U.S. Citizens, U.S. Legal Permanent Residents and Other Exempted Individuals from Certain European Countries, China, and Iran, including Mandatory 14-Day Self-Quarantine Period

By Anna H. Morzy and Laura Foote Reiff on Posted in Coronavirus, Department of Homeland Security, Ireland, Travel, UK, USCIS

Effective Monday, March 16, 2020, 11:59 p.m. EST, the U.S. will extend the same travel restrictions to the U.K. and Ireland as are already in effect for other European countries, China and Iran.

The Department of Homeland Security also issued a Fact Sheet outlining the return process for persons affected by the March 11 presidential proclamation suspending entry into the U.S.

U.S. citizens, U.S. legal permanent residents and other exempted individuals returning from all restricted countries will be required to travel through the following airports.  All travelers will be subject to health screenings and given further instructions regarding best health practices, which includes a mandatory 14-day self-quarantine period.

  • Boston-Logan International Airport (BOS), Massachusetts
  • Chicago O’Hare International Airport (ORD), Illinois
  • Dallas/Fort Worth International Airport (DFW), Texas
  • Detroit Metropolitan Airport (DTW), Michigan
  • Daniel K. Inouye International Airport (HNL), Hawaii
  • Hartsfield-Jackson Atlanta International Airport (ATL), Georgia
  • John F. Kennedy International Airport (JFK), New York
  • Los Angeles International Airport, (LAX), California
  • Miami International Airport (MIA), Florida
  • Newark Liberty International Airport (EWR), New Jersey
  • San Francisco International Airport (SFO), California
  • Seattle-Tacoma International Airport (SEA), Washington
  • Washington-Dulles International Airport (IAD), Virginia

DHS Acting Secretary Wolf stated- “I understand this new process will be disruptive to some travelers, however this action is needed to protect the general public from further exposure and spread of the coronavirus. Once back in the U.S. it is imperative that individuals honor self-quarantine directives to help protect their loved-ones and communities.”

The complete DHS press release can be accessed at https://www.dhs.gov/news/2020/03/13/department-homeland-security-outlines-new-process-americans-returning-certain.

This is a rapidly developing story so please check back to this blog for updates.  As always, contact your GT attorney as to specific questions or needs.

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