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What Obligations Do U.S. Employers Have Towards Nonimmigrant Employees During COVID-19?

During this Coronavirus crisis, there is a lot of uncertainty out there in terms of what the obligations for employers are towards their nonimmigrant employees. Obligations when it comes to I-9 verification, furloughs, layoffs as well as making material changes to the terms and conditions of their employment. So I will be addressing some of those issues. I will also be addressing Labor Condition Application (LCA) posting guidelines when the place of business and the place of employment are closed due to the current pandemic and you have temporarily asked your workers to work from home. These are some of the common issues that our clients are facing today.

A few things to consider at this time before we get into anything specific:

  1. Treat all employees, regardless of visa status, nationality, etc. the same.
  2. If you are considering a furlough, keep good documentation as to the terms of the furlough, in terms of why it’s occurring (e.g. the governor ordered all non-essential New Yorkers to stay at home and your business was considered non-essential)

 

The I-9 Verification Process for Remote Workplaces

So first comes I-9 verification. The Department of Homeland Security has announced some flexibility in the I-9 verification process when it comes to employers and workplaces operating remotely. There are no exceptions for employees physically present at their work location. For employees taking physical proximity precautions due to COVID-19, employers will not 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.). Once normal operations resume, all employees who were onboarded using remote verification, must report to their employer within three business days for in-person verification of identity and employment eligibility documentation. Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers.

 

Furloughs

Next comes furloughs. This is something a lot of companies might be considering in this time of uncertainty and a potential decline in revenue. Just to differentiate between furloughs and layoffs. A furlough is a temporary, leave of absence, which is generally shorter in duration. During the furlough, the employees are not paid, but they are still technically employed. When the business reopens, furloughed employees generally become active again. A layoff is more permanent long term solution.

If you consider a furlough, please note there is H-1B regulation that states that a worker who is rendered unable to work due to no fault of his or her own or due to conditions unrelated to employment (maternity leave, taking care of a sick relative), in those cases the employer is not obligated to pay the required wage rate during that period. However, the catch here is that a shelter-in-place order by the government may not fit the furlough exception, so the employee could file for back wages due to a violation of LCA’s terms and conditions in which case the employer could be subject to payment of back wages and penalties.

 

Layoffs

Another option here is a lay-off but under current regulations, this could require the employer to notify USCIS of the termination and providing return transportation. Rehiring would not be as straightforward as in the case of a furlough since you would have to file a new petition with USCIS.

Due to lack of guidance from USCIS and the Department of Labor (DOL) in this situation, we highly recommend reaching out to an immigration attorney before making a decision as to which option you want to exercise.

 

Reduction in Working Hours

Another option that employers could be considering is a reduction in working hours for their employees. While this may not be considered a huge deal for your regular employees, this is considered as a significant change in the terms and conditions of your nonimmigrant worker’s employment. Any significant change such as reduction in hours or salary as previously stated on the LCA requires prior USCIS approval and filing of an H-1B amendment with USCIS with the appropriate filing fees. Once again due to lack of guidance from the DOL and USCIS, we ask you exercise caution and consult an immigration attorney prior to making any changes.

 

Labor Condition Application (LCA) Requirements

The last thing I am going to cover in this video is Labor Condition Application (LCA) posting requirements both for a new job or where there is a change in an existing employee’s place of employment. In general, the Department of Labor uses a good faith compliance standard in enforcing both LCA and PERM regulations. What this means is that, regulations indicate that the notice must be visible to U.S. workers. It becomes a problem when notices are posted in an office where no one is working because it is not visible to U.S. workers.

LCA guidelines specifically state that employers must provide notice of the LCA through a hard-copy posting at the actual place of business where the H-1B is employed OR through electronic notice. The electronic notice may be on the company’s intranet or in its newsletter, or via direct e-mail to all affected employees. The email can be sent only once. Affected employees are those at the same worksite, in the same occupational classification as the prospective H-1B worker, and also include individuals employed by a third-party employer.

Where employers are asking employees to work from home rather than the work site, if the work-from-home is in the same area as your worksite location, that the same MSA, this does not create a new worksite. Hence, the employer is not required to file an H-1B amendment or a new LCA.

 

Need Help? Call Our NYC Immigration Lawyers

This is a very brief guidance on some of the major issues that our clients are facing today. If you require any additional information or clarification, please reach out to an immigration attorney. We here at Pollack, Pollack, Isaac & DeCicco, LLP are fully operational, and our attorneys are available via phone, email and video conferencing (Skype, Zoom, etc.) to answer all your questions. Call us at 212-203-4795.

 

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