The coronavirus (Covid-19) pandemic has had extensive impact on H-1B employment, and the circumstances and policies continue to change on a daily basis. The following is a summary of the key ways that the pandemic has impacted H-1B employers and employees thus far.
In response to the pandemic, employers are rightfully closing their offices and asking H-1B employees to work remotely from home. This can raise questions for employers as they work to maintain compliance with H-1B regulations, which typically require that employees working pursuant to H-1B status only work at the locations listed on the Labor Condition Application (LCA), with limited exceptions.
If an H-1B employee is working remotely and their remote location is within the same area of intended employment as the one listed on the LCA, then a new LCA is not generally required. Therefore, provided there are no changes in the terms and conditions of employment that may affect the validity of the existing LCA, employers do not need to file a new LCA. An “area of intended employment” means the geographic area within normal commuting distance of the worksite address. There is no rigid measure of distance which constitutes a normal commuting distance or normal commuting area. If the place of intended employment is within a Metropolitan Statistical Area (MSA), including a multistate MSA, any place within the MSA is deemed to be within normal commuting distance of the place of intended employment. In simple terms, if the H-1B employee is now working from home and the home office is within normal commuting distance of their office address, a new LCA is generally not required.
If the H-1B employee’s remote worksite is outside of the area of intended employment listed on the LCA, meaning more than normal commuting distance of their primary office address, an employer is still not required to file a new LCA provided this is a short term placement. A “short term placement,” however, cannot exceed 30 workdays each year, where “workdays” are days actually worked and do not include weekends and holidays. If the placement exceeds 30 workdays, a new LCA will be required, which then necessitates the filing an H-1B amendment with USCIS. Contact MMH if your H-1B employee will be working remotely at a worksite that is more than normal commuting distance from their primary worksite listed on the LCA for more than 30 calendar days this year.
Regardless of the employee’s remote worksite location, notice is required to be provided on or before the date any worker on an H-1B begins work at the new worksite locations, including in their home. The Department of Labor (DOL) has announced that notice will be considered timely when placed as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite location. The employer is still required to provide either electronic or hard copy notice at those worksite locations for 10 day calendar days total, unless direct notice is provided, such as an email notice.
When filing a new LCA for an H-1B extension, H-1B transfer or H-1B amendment, employers must provide notice of the LCA filing to its employees in the occupational classification in the area of intended employment on or within 30 days before filing. The employer may provide hard-copy or electronic notice to its employees, which must be available to employees for a total of 10 calendar days. During this pandemic, and in general, employers should remember that the regulations allow employers to provide electronic notice of an LCA filing. For electronic notice, employers may use any means ordinarily used to communicate with its employees about job vacancies or promotion opportunities, including its website, electronic newsletter, intranet, or email. If employees are provided individual direct notice, such as by email, notification is only required once and does not have to be provided for 10 calendar days.
USCIS announced that effective March 20, 2020, it would not accept any new requests for premium processing for all Form I-129 and I-140 petitions until further notice. This includes new premium processing requests for all H-1B petitions, including H-1B cap-subject petitions for fiscal year 2021 and H-1B transfers, extensions and amendments. USCIS will reject the Form I-907 and return the $1,440 filing fee for all petitions that were mailed after March 20, as well as those that were mailed before March 20, but had not yet been accepted.
This is especially important to consider when an H-1B employee accepts new employment and requires an H-1B transfer. While federal regulations permit a new H-1B employee to begin working for the new employer upon the “filing” of the H-1B transfer petition, many prospective employees are hesitant to give notice to their current employers and begin working for their new employers until the H-1B transfer has been approved. A process that previously took a few weeks will now take many months without the premium processing. Rather than wait, these employers and employees will now have to weigh the risks of starting the new employment while the H-1B transfer is pending.
As of March 20, 2020, the Department of State has temporarily suspended all routine visa services at all U.S. Embassies and Consulates worldwide. All immigrant and nonimmigrant visa appointments and interviews will be cancelled and rescheduled at a later time. Additionally, individuals who recently attended visa interviews and have not yet had their passports returned with their new visas will also have to wait. This means that many H-1B workers are presently stuck outside of the U.S. without a way to obtain a new visa to return. H-1B workers presently in the U.S. with planned travel in the coming weeks or months should seriously consider canceling or postponing such travel at this time.
In response to the pandemic, USCIS announced that it will now accept all benefit forms and documents with reproduced original signatures, including the Form I-129, Petition for Nonimmigrant Worker, used in all H-1B applications. The policy goes into effect for submissions dated March 21, 2020, and beyond. This means that a document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy is of an original document containing an original handwritten signature. We encourage clients to retain copies of the original documents containing the “wet” signature in the event USCIS requests them at a later date. This flexibility greatly assists us in continuing to file H-1B extensions, transfers, and new petitions remotely.
DHS announced on March 20, 2020, that it will exercise discretion to defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9). Employers will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2 of the Form I-9. Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection takes place after normal operations resume. These provisions may be implemented by employers for a period of 60 days from March 20, 2020 OR within 3 business days after the termination of the National Emergency, whichever comes first. Once normal operations resume, all employees who were onboarded using remote verification must report to their employer within 3 business days for in-person verification. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field on the Form I-9.
In addition, any employers who were served I-9 Notice of Inspection (NOIs) by DHS during the month of March 2020 and have not already responded will be granted an automatic extension for 60 days from the effective date. At the end of the 60-day extension period, DHS will determine if an additional extension will be granted.
While Social Security Administration (SSA) offices are closed to the public, E-Verify is extending the timeframe to take action to resolve SSA and DHS Tentative Nonconfirmations (TNCs) when an employee cannot resolve a TNC due to public or private office closures. Employers are still required to create cases for their new hires within three business days from the date of hire. Employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If case creation is delayed due to COVID-19 precautions, select “Other” from the drop-down list and enter “COVID-19” as the specific reason. Employers may not take any adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status.
If you have any questions about how the coronavirus (COVID-19) could affect the status of your H-1B employees, please contact one of our attorneys.
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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