The Global pandemic caused by COVID-19 is quickly impacting the existing immigration system both in the U.S. and elsewhere. This update is focused on the impact that COVID-19 is having on the U.S. system and how clients can cope with changes like work from home. We will do our best to provide updates as they are available, but given the trajectory of this pandemic, changes are happening quicker than we can possibly pay attention and update so we again caution clients on making travel plans that cannot be cancelled, and we look forward to when things return to normal. Until then stay safe, make sensible travel plans (if necessary) and contact our office if you have a specific issue you need assistance with, but know the regular order of business is completely out of whack!
Expect disruption. As we have already seen, the need for in-person interviews, fingerprints and other services are being dramatically curtailed by the U.S. government and actions by other state actors. We cannot expect that the system will continue to operate as expected and we will be forced to improvise and at times anticipate longer than expected delays. We also recognize that many of the laws that employers routinely comply with were created for orderly and anticipated business needs, and we know given current reporting that the situation as it continues to develop is anything but ordinary. We hope that in the near future we will start to hear that USCIS is relaxing some of the legislative burdens surrounding various visa programs and compliance regimes (as was done previously in response to Hurricane Katrina and 9/11), but this alert is aimed at ensuring that clients understand what is expected or available in terms of relief today.
We are hearing about rolling closings of much of the consular system worldwide. At this point U.S. consulates are closed in many European countries, and as of today India ceased consular operations, and additional closures are expected. The Department of State is providing real-time updates on travel guidance to various countries on travel.state.gov.
These disruptions work both ways and at any given time we have numerous visitors in our country. We have already seen several situations where people could not leave the U.S. after receiving an approval for a future status. Since they could not leave to pick up a new visa and enter on a new status, we’ve been successful at filing a change of status application within the U.S. which allows them to remain. For individuals concerned about international travel we will be happy to consider and review how we maintain status for any client while in the U.S. Should anyone be at risk of overstaying their status we can also review our ability to file last minute extension requests.
We also recognize that as these systems are tested, the ability to expedite cases using premium processing may be limited (not all filing types allow for premium processing), and the ability to involve Congressional assistance may be limited. We also recognize that expedite requests – currently based on severe economic harm or compassionate circumstances may be limited during this time. We will do our best to document and paper cases that should receive consideration by the government if no other good options exist for someone to return home.
Many companies that are in a position to do so have been implementing work from home rules for employees. This may possibly impact the underlying non-immigrant visa status type the foreign national employee. Any impact on the current status of that employee can have a direct impact on that employee’s ability to extend or amend their current status in the U.S. For this reason, it is our recommendation at this time that any work from home H or L employee work within a normal commuting distance of the office they normally report to – e.g. an employee will work from home in San Jose, CA when their office is in San Francisco, as this is still within normal commuting distance in the Bay Area. Working from home outside of a normal commute for individuals in H-1B status is a violation of program rules and in normal situations would trigger the need to file an amendment with USCIS. If your work from home approach triggers such a situation please separately discuss this with our attorneys and for the foreseeable future we are also adopting electronic posting of LCAs for H-1 filings when employers have temporarily closed their offices.
Despite the radical departure in business norms resulting from COVID-19, USCIS is reportedly at this time still conducting site inspections of recent NIV approvals on a randomized basis. It is important that there be a method available through which USCIS can make contact with the HR or Management team member in the event of a site visit (perhaps facilities or management #s are posted at the corporate entrance so agents can contact company representatives who can otherwise filter this through the company). This way the audit can still be conducted without jeopardizing the approval of the underlying H or L status. Know that if an FDNS officer does not get a response to a site visit inquiry they will seek to have an H or L approval revoked through a formal Notice of Intent to Revoke process.
The disruptions that are occurring will have an impact on how we manage cases going forward. Here are a few examples and suggestions to clients:
In the event that an employer chooses to reduce salaries to staff as a result of business loses, foreign nationals still must maintain a pay rate that meets the LCA obligations in their H-1B filing. Before adjusting the wages of H-1B employees an employer should check with our office to receive input on available options. Further, to terminate the employment of an individual on H-1B status we need to pay attention to proper withdrawal obligations and ensure that employees are given a proper understanding of their current status and it’s temporary nature (e.g. that H-1B status remains for a period of no more than 60 days post-termination).
The Department of Homeland security maintains its strict Form I-9 compliance requirements, despite the broadening impact of COVID-19. Though employers have shown flexibility by offering remote, “work-from-home,” options for their employees, employers are reminded that the I-9 must be completed within three days for new employees. For existing employees with expiring documents, re-verification must occur before the fourth day after document expiration. Likewise, original documents that establish identity and employment eligibility must be physically reviewed in order to comply with Section 2 of Form I-9 requirements; viewing or examining original documents via webcam is strictly prohibited.
Nonetheless, in situations where the employer representative works from home, or an employee is unable to physically present the original documents to the employer representative for inspection due to not being able to go into work, the new Form I-9 instructions, which apply to the Edition 10/21/2019 of Form I-9, provides that an employer may designate any person as an authorized representative to complete Section 2 of the I-9. As a result, other employees, agents, notary public, or even family members could potentially view the original documents and complete Section 2 as an authorized representative. As a best practice, an employer ought to take steps to ensure that the designated individual understands the requirements and obligations as authorized representative. The employer remains liable for “any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on [the employer’s] behalf.” In a situation where compliance is currently impossible, we recommend creating a separate memo and explaining the issue and reason for delay and completing the step when circumstances change. We also recommend taking similar steps insofar as they relate to e-Verify compliance that is delayed due to COVID-19.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **