FREQUENTLY ASKED QUESTIONS
The global novel coronavirus (COVID-19) pandemic has created many questions for employers and employees on the impact of COVID-19 work-from-home conditions, travel suspensions, and other measures, on immigration. We are providing these FAQs for employers to address common concerns related to immigration under the current pandemic.
Is the USCIS still accepting petitions/applications?
Yes. At this time, USCIS Service Centers are still operating and adjudicating petitions and applications.
Is premium processing still available?
No. As of March 20, 2020, the USCIS suspended premium processing requests for all filings, including H-1B change of employers, I-140 immigrant petitions, and this year’s FY2021 H-1B cap. Please read our alert on the suspension for more information.
When will premium processing be resumed?
As of this time, the USCIS has not indicated any tentative date for lifting the suspension. We will notify our clients immediately of any updates on premium processing, and work with you to upgrade eligible pending petitions once premium processing is available.
Are U.S. Embassies & Consulates open to process U.S. visas?
No. As of March 20, 2020, the U.S. Department of State (DOS) has temporarily suspended routine visa services at all U.S. Embassies and Consulates worldwide, with very limited exceptions for medical professionals, diplomats, and other “urgent” matters. This suspension impacts individuals outside the United States seeking to apply for a nonimmigrant visa stamp at U.S. consular posts and those seeking to travel and renew their visas. At this time, it is unclear how long the suspension will be in effect.
Does President Trump's suspension of immigrant visas affect nonimmigrants in the United States?
No. The President's Executive Order does not apply to temporary nonimmigrant classifications, including H-1B, L-1, E-3, TN, and F-1s, who are currently in the United States seeking a change of status, extension of stay, or change of employer, nor does it impact nonimmigrant visa applicants. The U.S. Citizenship and Immigration Services ("USCIS") is continuing to accept and adjudicate these petitions filed in the United States. The Order also does not apply to I-485 Adjustment of Status Applications, PERM Labor Certification Applications, or I-140 Immigrant Petitions. Within 30 days of this Proclamation’s effective date, the President may issue another order or “measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”
What accommodations has the DHS made for I-9 compliance?
On March 20, 2020, DHS announced that employers may inspect documents establishing work authorization remotely through electronic means, subject to the following requirements:
Must inspect original document within 3 business days of resuming normal operations
Must maintain written documentation of remote onboarding and telework policy for each employee (e.g. an email sent to staff mandating the work from home restrictions under public health orders)
These accommodations will last until Tuesday, May 19th or within 3 business days after the National Emergency order is lifted, whichever is sooner. For more information, please read our alert.
What accommodations has the DHS made for E-Verify compliance?
Unlike Form I-9, E-Verify does not require a review of original documents. To accommodate the COVID-19 crisis, DHS has extended the time to resolve tentative non-confirmations (TNC). If you are unable to complete E-Verify within three (3) days due to COVID-19, you should indicate the reason in the E-Verify portal. For more information, please see our alert here.
I have a new employee starting remotely abroad, as they cannot enter the United States due to COVID-19-related restrictions. How should I handle their E-Verify process?
If the individual is outside the United States, then federal immigration rules do not apply. Strictly speaking, if an individual has a Social Security Number (SSN), the individual can then be put on U.S. payroll. However, we strongly employers speak with their employment counsel to determine whether employing someone abroad will trigger any tax or employment law concerns in that country.
How can we comply with the Department of Labor (DOL) posting requirements for Labor Condition Applications (LCAs) under work from home restrictions?
Department of Labor (DOL) LCA regulations require that Notice of Filing (NOF) be given to affected workers at the place of employment on or within 30 days before the filing of the LCA. Notice can be given by:
Posting hardcopy in two conspicuous locations at the worksite for ten (10) days
Electronic means, which may include intranet posting or direct email, to affected workers
Where a worker is assigned to a new work location within the same area of intended employment (MSA), NOF must be posted at the new location. The DOL has granted a 30-day grace period of the re-posting requirement for employers to accomplish the NOF for H-1B, H-1B1, and E-3 employees who are now working from home. The preferred methods for accomplishing the re-posting in a WFH situation are to (1) email the NOF to “affected workers” directly, or by (2) posting the NOF on the company’s intranet site.
If we provide NOF for an LCA through email to affected workers, are we required to send an email to all employees?
No. Email notice must only be provided to “affected workers,” which are defined by the DOL as employees who are at the same place of employment in the same occupational classification as the H-1B, H-1B1, or E-3 worker.
How can we comply with the Department of Labor (DOL) posting requirements for PERM Labor Certification under work from home restrictions?
If your employees are currently working from home, we recommend waiting until WFH restrictions have concluded before posting PERM NOFs at the worksite. PERM Labor Certification requires hardcopy NOF posting for 10 business days at least 30 days prior to filing the PERM, as well as various recruitment steps within a 180-day window prior to filing. Unlike LCA posting requirements, the DOL does not permit an electronic option to provide PERM NOFs. The DOL has unfortunately not relaxed the hardcopy PERM NOF requirements and has suggested that posting at a worksite where all employees are working from home, may trigger an audit asking for evidence that the employees were properly provided the NOF. The DOL has provided an additional 60-day “grace period” if notice of filing or recruitment steps cannot be completed within the 180-day window. If you have questions on how delays in PERM NOFs will impact the green card process for an employee, please contact our office.
Can I furlough or reduce the salary of nonimmigrant (H-1B, E-3, H-1B1, F-1, O-1, etc.) employees due to the COVID-19 crisis? What about a reduction in hours or reduction in force (RIF)?
If you anticipate furloughing an H-1B, H-1B1, or E-3 employee due to the COVID-19 crisis, please contact our office to discuss.
What about a reduction in hours for H-1B, H-1B1s, or E-3 employees?
For H-1B workers, an amendment petition can be filed with the USCIS reflecting the reduced hours, which would allow the H-1B worker to start upon USCIS receipt of the amendment petition pursuant to “portability” provisions. However, no such portability provisions exist for H-1B1 or E-3 workers, and due to the current suspension of U.S. visa services abroad, such workers do not have the option to apply for a new E-3 or H-1B1 visa abroad and reenter. If you anticipate a need to reduce hours for an H-1B, H-1B1, or E-3 workers, please contact our office to discuss.
What about a reduction-in-force (RIF)?
While there are no compliance issues with terminating an H-1B, H-1B1, or E-3 worker permanently, employers must take certain steps when terminating employees in these statuses. For H-1B workers, employers are required to notify the USCIS of termination and provide transportation to the employee’s home country, if requested. For H-1B1 and E-3 workers, there are no specific requirements to notify the USCIS; however, we recommend withdrawing the LCA as evidence of the termination of the employer’s obligation to pay the worker. If you may or are likely to rehire the employee within 60 days, we recommend considering holding off on notifying the USCIS or withdrawing the underlying LCA to avoid filing a new petition or visa application.
How does temporarily or permanently terminating an H-1B, H-1B1, or E-3 employee impact their maintenance of status in the United States?
Temporary workers are entitled to a 60-day grace period following termination to (1) find a new employer, (2) change to another status, or (3) depart the country. If an H-1B employee is furloughed for 60 days or less, it is possible to rehire that employee without needing to file a new petition with the USCIS, so long as the initial petition has not been withdrawn. H-1B employees may also start working at a new employer as of filing a new petition (“H-1B portability”), a benefit that does not apply to H-1B1, E-3, or any other nonimmigrant statuses.
How does a furlough or RIF impact employees in F-1 student status working for my company on optional practical training (OPT)?
There are no issues with furloughing, reducing hours, or terminating an F-1 student in their first year of OPT. F-1 OPT employees have up to 90 days of unemployment without violating their F-1 nonimmigrant status.
For F-1 students working pursuant to a two-year STEM OPT extension, employers must notify the employee’s school within 5 days of termination, a significant reduction in hours, or temporary unpaid leave. F-1 STEM OPT employees are eligible for a cumulative of 150 days of unemployment without violating their F-1 nonimmigrant status.
What about other nonimmigrant classifications, such as TN, O-1, or L-1? How does a furlough, reduction in hours, or RIF impact employees in those statuses?
Temporary unpaid leave, reduction in salary, and reduction in hours is less of an issue for other employer-sponsored visas such as TNs, L-1s, and O-1s, as such classifications are not subject to LCA prevailing wage or anti-benching requirements. However, an amendment petition with the USCIS for any material change of employment would normally still be required, and the USCIS has not yet announced a relaxation of the requirement to file an amended petition. At this time, it is unclear whether the DHS will penalize employers for furloughing employees in these statuses due to shelter-in-place orders
Employees in these statuses, like H-1Bs, H-1B1s, and E-3s, are entitled to a 60-day grace period following termination. However, they are not eligible for any portability benefits, which are only available to H-1B workers.
Can foreign national employees work remotely outside the country until COVID-19-related restrictions have been lifted?
Generally speaking, there is no issue from a U.S. immigration perspective with foreign national employees working from home outside the country. LCA notice of filing requirements would not apply to worksites outside of the United States, and an amended petition would not be required to file with the USCIS. However, we recommend employers consult with their employment counsel, as there may be logistical considerations with payroll, possible tax issues, and employment law issues.
Is the USCIS now allowing electronic signatures in light of work from home (WFH) conditions?
Partially. The USCIS is allowing petitioners to submit scanned/photocopied versions of original signatures on petition forms. The USCIS has indicated its discretion to request the originally signed documents at any time if photocopies are submitted. For more information on this, please read our alert.