COVID-19 Update - Potential Immigration Issues For Employers
By Ayda Akalin, Esq.
March 19th, 2020
The COVID-19 outbreak in the United States has led to much uncertainty throughout the country as news continues to develop. As it stands, we forsee a myriad of potential issues for employers and their workforce to consider. We at Aghnami Law will partner with you at this time and keep you updated with the latest information and immigration updates as new developments come to light.
The following are potential issues and pitfalls that certain employees may face. In particular, employers who have any foreign national employees on their payroll--including, but not limited to: H-1B, E-3, L-1A/L-1B, TN, or O-1A employees--will need to ensure that they remain in compliance with the terms of the visas that these employees are on. Several of the major items to consider include I-9 compliance, LCA compliance, USCIS office closures, workplace postings, and travel, among others.
As you know, when hiring any new employee Form I-9 must be completed as part of the on-boarding process. One of the requirements of Form I-9 is that the employer must physically inspect the employee's work authorization documents. Obviously, this will present a unique challenge to any employers who have already implemented a company-wide quarantine or mandate to work from home. In order to ensure that I-9 document verification can be completed in a manner that complies with current regulations, employers will need to consider updating their verification process and ensuring that there is a means of physically verifying work authorization documents available to any and all employees.
When employers hire H-1B or E-3 employees, they are also required to sign a Labor Condition Application (LCA) as part of the initial H-1B visa petition. The LCA is effectively a contract that specifies the precise terms of the foreign national's employment--including the place of employment, work hours, rate of pay, and more. Any material changes to the terms of an H-1B or E-3 employee's employment--including a reduction in hours due to a company-wide shutdown, an immediate inability to pay the foreign national's proffered wage, or a change to a remote-working arrangement, to name a few--may result in a finding of non-compliance with the employee's visa classification and lead to problems with the Department of Labor and USCIS. As such, we encourage employers with H-1B or E-3 employees to contact us to ensure that they remain in compliance with the Department of Labor's regulations prior to implementing any changes to their foreign national employee's terms of employment.
USCIS Office Closures
As of March 17, 2020, all USCIS field offices have temporarily been closed until April 1, 2020 at the very earliest. The Department of Homeland Security anticipates that this closure will more likely than not be extended well into the summer and that other services may be impacted. In fact, the State Department has already canceled all routine nonimmigrant and immigrant visa appointments at embassies and consulates worldwide, with only emergency services being available where possible. It remains to be seen as to whether or not the USCIS Service Centers that adjudicate both nonimmigrant and immigrant petitions alike will also be closed--and thereby lead to further delays in the adjudication of any cases that are currently pending at USCIS, or the receipt of cases that have not been submitted as of yet. This may lead to potentially major ramifications for foreign nationals seeking adjustment of status, change of status, extension of status, or any other immigration benefit. Although foreign nationals with current USCIS appointments should receive rescheduled appointment notices, most of these have yet to be issued at this time. Our team at Aghnami Law understands the importance of continuous and diligent monitoring of all your case matters during this time.
Many employers with H-1B, E-3, or PERM (Labor Certification) petitions are required to post a notice at their worksite. In the event of a company-wide shutdown, this will no longer be possible. One option to comply with this posting requirement is to post electronically within the company's intranet; however, all employees must have access to this. Because each company's setup is unique and different, other options may exist.
Many foreign national employees may need to travel for either business, immigration, or personal reasons. On March 11, 2020, the President announced restrictions on travel to the United States from all of the Schengen countries; this travel restriction was subsequently expanded to include both Ireland and the United Kingdom. Furthermore, even the U.S./Canada border has been closed to all non-essential travel. Any employers with foreign nationals who are awaiting a consulate interview will undoubtedly be affected by these travel restrictions, and foreign nationals from any of the aforementioned countries who had planned to return to their home country--whether it be to visit family, conduct business, or to obtain an updated visa stamp--will be unable to do so. Because the travel restrictions have been repeatedly changed and expanded, all employers with foreign national employees should strongly urge those employees to immediately discontinue all international travel until futher notice. As you may know, it is highly possible that as the impact of the virus is felt in other regions of the world, the administration may impose additional travel restrictions. Please contact us for a consultation to discuss any potential need for visa extensions and other travel-related matters for your employees.
Get In Touch With Us!
Much like the COVID-19 outbreak itself, any immigration-related information for employers with foreign nationals on payroll is very much subject to change as more guidance is issued by USCIS and other federal agencies. We strongly recommend contacting our office for a consultation so that we can keep you updated on the latest developments as it pertains to your immigration-related matters.