LAC Legal Update: Immigration Matters and COVID-19

LAC Legal Update: Immigration Matters and COVID-19

14:27 18 March in News Updates

The team here a Larrabee Albi Coker extends our thoughts and support to our global community of clients, friends and family in these challenging times.

We remain open for business and fully committed to assist as needed.   In an effort to support public health recommendations to help reduce the spread of COVID-19, we have transitioned our day-to-day operations to a combination of staggered office shifts and a work-from-home schedule.  Our usual business hours remain unchanged and we are available from 8:30 am to 5pm, Monday through Friday.  However, effective today, March 17, 2020 our office will be temporarily closed to visitors.

Following please find important updates on the immigration implications associated with the COVID-19 emergency.

ISSUES ASSOCIATED WITH REMOTE WORK AND ONLINE CLASSES:

As businesses transition their employees to working from home arrangements and universities move to online courses, these circumstances may trigger unintended immigration consequences.

H-1B, E-3, H-1B1 Employees Working Remotely – 30/ 60 Day Rule

Note:  The below applies to all LCA-based visa classifications:  H-1B, E-3, H-1B1

Employees may work from a location not listed on the certified Labor Condition Application (LCA) for a period of up to 30 workdays per year.  The allowable period increases to 60 workdays per year if the following conditions are met:

  • The employer continues to pay at least the prevailing wage;
  • The employee continues to maintain a work station at his/ her permanent worksite; and
  • The employee’s residence is located in the area of the permanent worksite (in cases where the employee will be working remote outside of their home.  For instance, at a friend or family member’s home).

If the remote placement becomes necessary for more than 60 work days and the off-site location is within the same Metropolitan Statistical Area (MSA) as the worksite on the certified LCA, posting notices must be placed in two different locations at the temporary worksite for ten consecutive days, even if the off-site location is the employee’s home.  Exception:  This rule does not apply if the posting notices were originally distributed electronically.

If the remote placement becomes necessary for more than 60 days, and the home office is located outside of the MSA covered by the LCA, then

1) A new posting notice must be placed in the home office;

2)  A new LCA must be certified; and

3) an amended petition must be filed with USCIS.

The posting notice must be placed in the employee’s home office for ten consecutive days in two different locations and then added to the employer’s Public Access File.   Please contact our office if an amended H-1B petition is necessary.

LCA Posting Requirements for New H-1B, E-3, H-1B1 Employees and for Extension Filings

Notice of LCA filing must be posted at the worksite prior to submission of the LCA to the Department of Labor, even when an employee will work remotely, and even when the entire business operations are temporarily working remotely.

Employers have the following posting options:

    1. Place a Hard Copy Notice in 2 conspicuous locations at the intended worksite for 10 calendar days, beginning on or within thirty (30) days before the LCA is submitted to DOL.  The appropriate locations for posting the notices include, but are not limited to, locations in the immediate proximity of wage and hour notices or occupational health and safety notices.  On the 10th day, the postings should be initialed and dated, and placed in the Public Access File; or
    2. Upload an Electronic Posting Notice made available to employees for 10 calendar days, beginning on or within thirty (30) days before the LCA is submitted to DOL.  An employer may accomplish this by any means it ordinarily uses to communicate with its employees about job vacancies or promotion opportunities, including through its “home page” or “electronic bulletin board”.  On the 10th day, the posting should be printed, initialed and dated, and placed in the Public Access File; or
    3. Send an e-mail or an actively circulated electronic message such as the employer’s newsletter.   Notification only needs to be given once on or within thirty (30) days before the LCA is submitted to DOL.  The e-mail message or newsletter should be printed and placed in the Public Access File.


Public Access Files

Public Access Files (PAFs) must be kept for all H-1B, E-3, H-1B1 employees and should be maintained at the employer’s principal place of business or the worksite, and presented upon demand.

Employers have the option of maintaining PAFs electronically.  Those keeping hard copy PAFs may want to store documents electronically until the worksite reopens and the normal practice of keeping a hard copy PAF can be resumed.

I-9 Completion for New Hires and Reverification

Section 2 of the I-9 form, “Employer or Authorized Representative Review and Verification” requires in-person verification of identity and employment authorization documents by the end of the third day of work for pay.  Section 3 reverification of expiring work authorization documentation is required on or before the date the documentation expires.  Immigration and Customs Enforcement has not provided guidance on whether this requirement will be relaxed given the current state of emergency and the requirement that many companies have closed worksites.

In absence of official guidance, if in-person verification is not an option, and in this exceptional circumstance only, employers may elect to accept a photocopy of Section 2 documentation, prepare a memo to the I-9 file explaining why they did so (in compliance with the public health directive), and affirm they will view the original document as soon as it is feasible.    We must stress that this approach has not been blessed by ICE, but seems preferable to not making a good faith effort at verifying identity and work authorization at all within the designated time period.

F-1 Students and Online Classes

While F-1 students are generally only allowed to take one online class, Immigration and Customs Enforcement has issued guidance confirming that online courses are currently acceptable.  For individuals in F-1 status who are employed based on OPT or STEM OPT, we recommend students provide updates to their school’s International Students Office in order to obtain a SEVIS update reflect their work from home situation.

ISSUES ASSOCIATED WITH TRAVEL

Given the fluid and rapidly changing policies implemented by governments world-wide, we urge all clients to carefully consider any international travel at this time.

Bars on Entry to the United States

As of Monday, March 16, 2020 at midnight, the United States has banned the entry of most nonimmigrants who have recently been present in certain high COVID-19 outbreak regions.  The ban includes travel from China, Iran, Schengen Countries, the United Kingdom and Ireland.

The bar does not include the following individuals:

    1. U.S. Citizens;
    2. Lawful Permanent Residents of the United States;
    3. Spouses of a U.S. citizen or lawful permanent residents;

Additional exempted individuals:   https://www.federalregister.gov/documents/2020/03/16/2020-05578/suspension-of-entry-as-immigrants-and-nonimmigrants-of-certain-additional-persons-who-pose-a-risk-of

United States Consular Post Closures

As of March 16th 2020, United States Embassies and Consular Posts are cancelling, on a country by country basis,  routine immigrant and nonimmigrant visa appointments.  Please check the specific Embassy or Consulate’s website for updates before making any travel plans at www.travel.state.gov.  The posts will resume routine visa services as soon as possible but are unable to provide a specific date at this time. Please note, the MRV fee remains valid and may be used for a visa application in the country where it was purchased within one year of the date of payment.

Cancellations of ESTA registrations

We have learned that ESTA registration revocations are occurring to discourage travelers barred under the COVID-19 Travel Bans to attempt to travel to the United States.  These revocations are completed without prejudice and travelers impacted by this policy will be able to re-apply for ESTA in the future.

When the travel ban is lifted, individuals will need to check the validity of their ESTA registration prior to booking travel to ensure it is still valid.

Emergency Extension of 90-day ESTA admission

Individuals in the United States pursuant to ESTA whose 90-day period of admission will be expiring but cannot depart the United States due to the COVID-19 situation, may request that Customs and Border Protection to issue a one-time 30 day extension of time to depart the U.S. known as Satisfactory Departure.  A “Satisfactory Departure” extension is an exceptional circumstance and is not guaranteed.  Please contact us directly if you need assistance in this area.

USCIS OFFICE CLOSURES

As of March 17, 2020 the USCIS offices in San Francisco and San Jose are closed until April 6, 2020 due to the local Shelter-in-Place order.  Please see the following website for a current list of USCIS office closings: https://www.uscis.gov/about-us/uscis-office-closings.

Other USCIS offices will reduce the size of the daily interview schedule to allow for social distancing so applicants may receive de-schedule notices as a result.  The agency will perform additional cleaning and sanitizing of the building and public space during this period.

Application Support Centers (which take biometrics) will only allow access to applicants (and their small children).  Attorneys, interpreters, and parents of juveniles will also have access.  All others will be respectfully asked to wait outside.

Naturalization Ceremonies scheduled for March 19, 2020 at the Los Angeles Convention Center and for March 25, 2020 at San Diego Golden Hall are postponed and will be rescheduled through smaller, incremental ceremonies as operationally feasible and in conformity with local public health advisories and declarations

USCIS urges applicants to reschedule appointments if they become ill for any reason; have traveled internationally to any country outside the U.S. within 14 days of their  appointment; believe that they may have been exposed to COVID-19; or are experiencing flu-like symptoms (such as a runny nose, headache, cough, sore throat or fever.  Please contact us directly so that we can assist you if you need to reschedule an appointment.

We will continue to keep you apprised of important developments as they occur.  In the meantime, we are here for your questions.  Stay safe and be well.

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