Immigration Compliance & Updates for Employers with H-1B Employees
Updated: May 5, 2020
USCIS premium processing suspension for I-129 and I-140 petitions
As of March 2o, 2020 USCIS (the U.S. Citizenship and Immigration Services) has announced a temporary halt on I-907 Request for Premium Processing Service, due to COVID-19. Though the suspension of service is temporary, at this point it is an indefinite hold. Any petitions previously accepted, in accordance with the premium processing service criteria where you have a Receipt or a Notice Number, will be processed. Any petitioners who have filed a Form I-129 (Petition for a Nonimmigrant Worker) or a Form I-140 (Immigrant Petition for Alien Workers) using premium processing service but haven't received any notification/action on their petitions within the 15-calendar-day period will receive a refund.
Things to consider:
File visa extensions sooner than later. Extensions can be filed 6 months before the expiration date for most non-immigrant visas. Once a petition is filed, the beneficiary may automatically get 240 day work authorization extension.
File dependent extensions and Employment Authorization Document (EAD) applications.
Flexibility in Submitting Required Signatures
March 20, 2020 USCIS announcement -
"..... due to the ongoing COVID-19 National Emergency announced by President Trump on March 13, 2020, we will accept all benefit forms and documents with reproduced original signatures, including the Form I-129, Petition for Nonimmigrant Worker, for submissions dated March 21, 2020, and beyond.
USCIS already accepts various petitions, applications and other documents bearing an electronically reproduced original signature. This means that a document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy must be of an original document containing an original handwritten signature, unless otherwise specified. For forms that require an original “wet” signature, per form instructions, USCIS will accept electronically reproduced original signatures for the duration of the National Emergency. This temporary change only applies to signatures. All other form instructions should be followed when completing a form.
Individuals or entities that submit documents bearing an electronically reproduced original signature must also retain copies of the original documents containing the “wet” signature. USCIS may, at any time, request the original documents, which if not produced, could negatively impact the adjudication of the immigration benefit."
I-9 Requirements Flexibility
The US Department of Homeland Security has announced new flexibility relating to I-9 compliance for remote employees as of March 20, 2020. Employers who are taking work from home measures due to COVID-19 will temporarily not be required to review an employee's identity and employment authorization documents in the employee's physical presence.
If you have remote employees who are beginning work, the employee should still fill out Section 1 of the I-9 form on or before their start date. As the employer, you'll still need to complete Section 2 of the Form I-9 within three days, but you may “virtually” inspect the employee's documentation remotely. Enter “COVID-19” as the reason for the physical inspection delay in the "Section 2 Additional Information" field. Once normal operations resume, you'll have three days to physically inspect the employee's identity and work authorization documents. At that time, add “documents physically examined on [the date that such inspection was completed]” to the Section 2 Additional Information field.
As the employer you may submit a petition for extension of stay on the employee’s behalf to USCIS. If the petition is received before the employee’s current I-94 expires, the employee may continue to work for you 240 days beyond the I-94 expiration date, pending a decision on the petition for extension of stay.
Automatic extension of deadlines for response to DOL inquiries*
Department of Labor has extended the response time given on certain inquiries to prevailing wage determinations and labor certification applications. If a deadline falls between March 13, 2020 and May 12, 2020, DOL will automatically extend that deadline to May 12, 2020. Here are a few exceptions -
Request for audit documentation
A response to a Notice of Deficiency
Submission of recruitment reports
Business verification and sponsorship documentation, supervised recruitment requests
Request for reconsideration of prevailing wage determination
Any other request for information issued by OFLC containing a due date
LCA postings where H-1B employees are forced to change worksites**
H-1B regulations require that employers provide notice of H-1B hiring either through a hard-copy posting of the Labor Condition Application (LCA) at the actual worksite(s) where the H-1B employee works, or through electronic notice (which may be posted on the company's intranet or in its newsletter, or sent via direct email to the affected employees). The DOL generally uses a good-faith compliance standard for enforcement of the LCA regulations.
Worker within the MSA
If an H-1B employee's personal residence (new place of work) is located within the same Metropolitan Statistical Area (MSA) or Primary Metropolitan Statistical Area (PMSA) as the worksite location mentioned on the LCA, a new LCA approval is not need to work from home, nor is an amended H-1B filing required. In accordance with USCIS guidance, LCA notices should still be posted at the new worksite location (employee's residence) for 10 consecutive business days. Thereafter, the notices should be placed in the employee's Public Access File. You may contact your legal counsel for assistance.
Worker Outside the MSA (U.S. Residence)
LCA regulations (20 C.F.R. § 655.735) permits placement of the H-1B worker at any worksite/s (even if not listed on approved LCA) for up to 30 workdays per year. These "workdays" do not include weekends or holidays and could thus cover the employees for up to six workweeks.
PERM recruitment extensions*
Under the COVID-19 accommodation, Department of Labor (DOL) will accept PERM filings where recruitment efforts began no more than 240 days (instead of 180 days originally) before filing, provided that the recruitment was initiated between September 15, 2019 and March 13, 2020, and the PERM filing occurs by May 12, 2020.
PERM Notice of Filing extension*
Department of Labor (DOL) requires employers to notify their workforce of the intention to file a PERM application by physically posting a Notice of Filing for 30 to 180 days before submitting the application with DOL. Under the COVID-19 accommodation, DOL will accept accept Notice of Filing that were posted within 60 days after the 180-day deadline, provided that recruitment began between September 15, 2019 and March 13, 2020.
* - Fragomen, LLP
** - Littler Mendelson P.C.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a WayLit-affiliated attorney or another qualified professional.