Coronavirus has clearly disrupted businesses in the United States. Businesses are forced to come up with a new strategy to continue operations. Employers in the United States must work around existing immigration laws so that immigration compliance can still be maintained, and current foreign workers may continue working in the US without issues. We provide some latest information, analysis and recommendations that employers should be aware of as they restructure operations due to the outbreak of COVID-19 virus.
Key points to note for Employers
- The coronavirus outbreak will significantly slow the operations of the legal immigration system in the United States, and thus will harm the functioning of businesses employing foreign workers.
- Government offices might not be functioning and services will be substantially disrupted because person-to-person interviews, biometrics appointments, visa approvals and immigration benefits requests that must be made by officers at US Citizenship and Immigration Services (USCIS) and other immigration agencies will be considerably disrupted.
- Employers providing remote work options to their employees to safeguard themselves from the COVID-19 outbreak, must guarantee continuing immigration compliance and preserve the ability to maintain and extend the immigration status, visas and employment eligibility of their alien workers.
- Maintenance of status may face further hurdles should USCIS restrict its Premium Processing Service. Other requests for faster adjudication that seek extraordinary immigration relief based on compassionate or national cause grounds are likely to be refused.
- A number of alien employees/foreign workers and visitors on a business visa may find that their non-immigrant visa status cannot be extended, with the result that workers must be removed from employment, and persons who are out of status or unlawfully present, if they continue to stay in the US, do so in violation of the immigration laws.
- Foreign nationals on a business visa may need to file extensions or apply for an additional 30-day period for “satisfactory departure” based on a valid reason such as inability to travel.
- Businesses that instruct their H-1B (specialty occupation) employees to do remote work must still comply with US Department of Labor (DOL) directive on the geographic dimensions of prevailing LCAs (Labor Condition Applications).
- H-1B compliance can be maintained if the H-1B employee working from a home office lives within “normal” commuting distance from the workplace mentioned on the LCA. Normal commutes are usually within 50 miles, but greater distances of up to 70 miles or more may be allowed. The US Department of Labor’s LCA exemptions for short-term placements are not likely to be of much avail.
- Employers of intracompany L-1 managers, heads and employees with core areas of expertise must have an office from which to resume operations.
- Though L-1 managers can choose to do remote work, USCIS is well within their rights, through its FDNS (Fraud Detection and National Security) department, to carry out sudden visits to investigate operations at the worksite mentioned on the L-1 employer’s visa petitions.
- FDNS workplace investigations may lead to the cancellation of visa petitions for prevailing L-1 staff, thus leading to termination of L-1 employment. Employers should be ready to oppose any notices of intent to revoke L-1 visa petitions.
- Businesses with approved L-1 blanket petitions should prepare to file more vexatious “individual” L-1 petition extension requests with USCIS, since consular adjudication of blanket L-1 visa applications are likely to be delayed due to travel restrictions and consular post closings or reductions in visa services.
- Visa appointments currently scheduled for the month of April in US Consulates in Western Europe have been cancelled and will be rescheduled for latter period of May. Employers should guide their foreign national or alien workers in the US to refrain from foreign travel for renewing visa, and prepare to file more work visa petitions requesting status extensions with USCIS.
- Students on a F-1 visa who are currently finishing their educational programs are opting for online classes for the rest of the semester. We recommend students who are returning to their native countries to complete their course, apply for Optional Practical Training (OPT) and file their I-765 Application for Employment Authorization before they leave the US.
