Tips for U.S. Employers of H-1B Employees:
- H-1B employees must be afforded the same opportunity to work remotely as other similarly situated employees.
- Employers of H-1B visa employees who are allowing their employees to work remotely should check the Labor Condition Application (“LCA”) on file for each H-1B employee. [Click here for additional information regarding steps H-1B employers should take if they are allowing their H-1B employees to work remotely.]
- U.S. employers must remember that there are additional obligations to pay H-1B employees certain wages, regardless of whether the H-1B employee is actually working or not. [Click here for additional details regarding a U.S. employer’s obligations to pay H-1B employees in the event of a shutdown or reduction in hours.]
Tips for U.S. Employers of Foreign National Workers with Other Types of Nonimmigrant Visas Who are Considering Staffing Adjustments in Light of the Outbreak:
- Employers of ANY foreign national employee who is employed pursuant to an employer-sponsored nonimmigrant visa must remember that the foreign national employee’s visa status and ability to remain in the U.S. legally are tied to their maintaining employment. [Click here for a detailed explanation of the immigration consequences of terminating the employment of a foreign national worker who holds a employer-sponsored visa status.]
- Employers of foreign nationals with nonimmigrant visas other than the H-1B visa who are considering reducing the total number of hours that such foreign national employees work each week should consider reaching out to an immigration lawyer, as a reduction in work hours may constitute a “material change” in the conditions of employment, requiring an amendment to the foreign national employee’s visa petition.
Completing the Form I-9: Identity and Employment Authorization Verification or Re-Verification Process for Businesses Operating Remotely:
- Understanding that social distancing is a must during this outbreak, the U.S. Department of Homeland Security has announced Form I-9 identity and employment verification flexibility with respect to compliance with the physical inspection requirement for businesses operating remotely only. [Click here for an in-depth explanation of the temporary I-9 employment verification procedures announced by USCIS.]
Changes to USCIS Processes and Deadlines During the Outbreak:
- USCIS has announced that, starting March 21, 2020, it will begin temporarily accepting all immigration benefit forms and documents (such as immigrant and nonimmigrant visa petitions) with reproduced original signatures. Please be aware that USCIS has not indicated that this change will be permanent, and that when submitting documents bearing an electronically reproduced original signature, the document bearing the “wet ink” signature must be retained in the event of a USCIS audit or request to produce the document.
- USCIS has also announced that, as of March 20, 2020, it will be temporarily suspending its premium processing service for all Form I-129 and Form I-140 petitions. USCIS has clarified that all petitions filed under premium processing which have already been receipted will continue to be processed in accordance with premium processing service criteria.
- The U.S. Department of Labor has extended the deadlines for filing certain applications (such as PERM applications.) Given that the situation is rapidly evolving, employers should continue to check the Department of Labor’s “Coronavirus Resource” page.
- Effective March 19, 2020, any employers who were served during the month of March 2020 with Notices of Inspection for their Forms I-9 and who have not yet responded are granted an automatic 60-day extension for filing a response. DHS will determine if an additional extension will be granted after this initial automatic 60-day extension period.