International travel to the United States and the availability of U.S. consular services around the world have been dramatically impacted due to the pandemic.
The entry of foreign nationals from UK and Ireland has been suspended in addition to mirror restrictions already in place for China, Iran, and the 26 Schengen countries. Canada and the US have also suspended the crossing of non-essential persons across the border.[1] These restrictions do not apply to US citizens and permanent residents returning home and certain categories of non-immigrants. However, they may be subjected to quarantine and testing at the border.
The restrictions apply regardless of whether one possesses a valid visa to enter the US or has a valid Electronic System Travel Authorization, more commonly referred to as ESTA. ESTA is an online system used to determine whether a traveler is eligible to travel to the United States under the Visa Waiver Program, which allows nationals of 38 countries to travel or be admitted to the United States without a visa.
For those travelers on ESTA who are already in the US but are at risk of overstaying because they cannot depart, Customs and Border Protection (CBP) is working on a procedure to grant them a 30-day additional period. This 30-day period will be available due to emergency circumstances which do not allow a timely departure. Similarly, there is talk that others who are in the US on visas with validity about to expire and who cannot leave the US for reasons related to the pandemic will be granted extensions so as to not render them out of status.
There is concern among some US legal permanent residents, especially elderly ones, who have been abroad for a few months that their return home may be delayed due to health concerns. They are avoiding travel due to health concerns and may have to stay abroad for a total of more than six months and be at risk of being deemed to have abandoned their permanent residence status. Permanent residents generally are not permitted to spend more than six months outside the US. At least in the short term it is likely that their status will be protected under emergency exceptions to the abandonment rules.
Other nations are also implenting restrictions to entry. These restrictions are being updated daily. Here are two websites where current information on these can be found: https://www.nytimes.com/article/coronavirus-travel-restrictions.html; https://travel.state.gov/content/travel/en/traveladvisories/ea/covid-19-information.html
Key Considerations for Employers
Employers should carefully assess international travel at this time, especially for their foreign workers. The person traveling abroad could be unable to return to the US for an extended period. This is because of the high possibility of cancellation of visa appointments and US based travel restrictions.
Even with a valid visa, there is no certainty the employee will be able to return to the United States as the scope of the travel restrictions keeps expanding.
There is no need for employees who were admitted into the United States who possess expired visas, to travel abroad to renew their visa stamp. A timely extension filed by the employer will cause the employee’s work authorization and status to remain valid while the extension remains pending.
Challenges facing employers sponsoring foreign workers during the COVID-19 outbreak
1. Fulfilling Department of Labor Notice Requirements[2]
There are notice requirements for the temporary H-1B and the permanent employment-based PERM programs in the US Department of Labor (“DOL”) regulations. The requirements are designed to protect US workers by giving them notice of filing, and an opportunity to file complaints with the DOL. Now that workplaces are shut down due the corona virus, employers must determine how to satisfy these obligations. Another complexity is that the regulations tie H-1B and PERM benefits to a specific worksite.
As many employers are enabling their workforce to work remotely or requiring them to do so for a temporary period, it becomes important to inquire whether H-1B workers can work from home. Do different notice requirements then apply? And is there a need to file an amended H-1B petition.
DOL came out with updated notice requirements for PERM and H1B cases on March 20, 2020. These can be accessed online at: https://www.foreignlaborcert.doleta.gov/.
H-1B notice. This notice is designed to protect jobs of U.S. workers by making sure that H-1B workers are provided that same wages and benefits as similarly qualified US workers. Along with a certified Labor Condition Application (“LCA”), notice is required to be given to U.S. workers that an H1-B worker is being hired. This notice can consist of a hardcopy posting at the actual worksite, or an electronic notice, such as intranet/newsletter or direct email to the effected workers.
PERM Regulations. For a permanent PERM or labor certification application the employer has similar obligation of notifying its workforce. There are similar hardcopy requirements, but the regulations do not provide alternate electronic notification. Rather, the electronic notification must be done in addition to the hardcopy postings.
What are the obligations of an employer during a quarantine?
The DOL regs. are based on a good faith standard in implementing both the H-1B and PERM programs. The notice must be visible to US workers. However, when there is no one working in the office, notices are not visible.
With H-1Bs the safe approach would be to give the required notice to workers electronically, through the company intranet or direct email. Individual hardcopy mailings to each individual worker would be sufficient where employees lack computer access. A paper notice at a worksite that is unoccupied is not necessary. During this pandemic, and in general, employers should also be aware that the regulations allow employers to provide electronic notice of an LCA filing.[3]
The PERM situation is more difficult because the hardcopy notice is mandatory, but with an empty office no one is there to see the notice. Employers may wish to wait till the end of the quarantine to post the notice. This depends on having sufficient available time and is difficult in certain situations like when the sponsored worker’s H-1B time is about to end. Should it be necessary to post the notice during a quarantine when it is likely that no workers are there to see it, then in addition to the legally mandated 10-day hardcopy worksite posting employers should also think of providing additional notice to employee that are working remotely. Such notice may consist of electronic notification, direct email, or direct hardcopy mailings. DOL may or may not agree with these methods, but at least they would seem to comply with the spirit of the regulations.
Employers are required to begin their recruitment efforts no more than 180 days before filing an Application for Permanent Labor Certification (Form ETA-9089), and to complete most recruitment measures at least 30 days before filing.
Due to service disruptions and other business operations temporarily affected by the COVID-19 pandemic, some employers may be prevented from completing these requirements within the 180-day time frame. Therefore, OFLC will accept recruitment completed within 60 days after the regulatory deadlines have passed to provide employers with sufficient time to complete the mandatory recruitment and file their PERM application; provided that the employer initiated its recruitment within the 180 days preceding the President’s emergency declaration on March 13, 2020. DOL has provided an additional 60 days to file the Notice of Filing, in cases where due to the pandemic there is need to temporarily close offices, or shift business operations to partial or full-time telework
2. Is work from home permissible for H-1B workers?
Working from home is allowed, there are no restrictions on the H-1B employee’s worksite location. In such cases the notice is to be posted at the employee’s home and later stored in the employer’s file. If US workers are afforded the option to work from home, then H-1B workers must be afforded the same.
3. Is an amended filing required when an H-1b employee works from home?
The answer depends on whether the employee’s residence is within the same metropolitan statistical area (“MSA”) as the worksite. An MSA is defined as, “the area within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be employed. There is no rigid measure of distance which constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas (e.g., normal commuting distances might be 20, 30, or 50 miles)….” If the residence and worksite are in the same MSA then a new LCA is not needed.
If an employer’s H-1B employee is simply moving to a new job location within the same area of intended employment, 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. Employers with an approved LCA may move workers to other worksite locations, which were unintended at the time of filing the LCA, without needing to file a new LCA, provided that the worksite locations are within the same area of intended employment covered by the approved LCA.
The employer must provide either electronic or hard-copy notice at those worksite locations meeting the content requirements for 10 calendar days total, unless direct notice is provided, such as an email notice. It is important to note that if the move includes a material change in the terms and conditions of employment, the employer may need to file an amended petition with USCIS.
Notice is required to be provided on or before the date any worker on an H-1B, H-1B1, or E-3 visa employed under the approved LCA begins work at the new worksite locations. Because OFLC acknowledges employers affected by the COVID-19 pandemic may experience various service disruptions, the 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 locations.
Employers with an approved LCA may also move H-1B workers to unintended worksite locations outside of the area(s) of intended employment on the LCA using the short-term placement provisions applicable to H-1B workers.
The regulations permit 30 and 60-day short term placements outside the worksite listed on the LCA under certain circumstances. If those circumstances exist then a new LCA is not required. The 60-day period for H-1Bs (30 days after the initial 30 days) only applies to those working from home outside of the LCA’s MSA. If the person is within the MSA, then after 30, a new LCA and petition are required.
However, if the quarantine lasts longer than 30 workdays, the employer will need to file a new LCA to cover the employee’s residence and comply with all the LCA notice requirements. As a new LCA will need to be filed, so too will an amended petition with the USCIS.
Author: Mo Syed, Esq.
Articles have been Reprinted with permission from the charlotte observer and Mike Hunter.
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