March 26, 2020
USCIS Temporarily Closing Offices to the Public During COVID-19
As of March 18, 2020, U.S. Citizenship and Immigration Services (USCIS) suspended in-person services at its field offices, asylum offices, and Application Support Centers (ASCs) in response to COVID-19 until at least April 7. USCIS field offices will send notices to applicants and petitioners with scheduled appointments and naturalization ceremonies impacted by this closure. USCIS asylum offices will send interview cancellation notices and automatically reschedule asylum interviews. When USCIS resumes normal operations, USCIS will automatically reschedule ASC (biometrics/fingerprint) appointments due to the office closure. If you do not receive a new appointment notice by mail within 90 days, call 800-375-5283.
USCIS staff will continue to perform duties that do not involve contact with the public; however, USCIS will provide emergency services for limited situations. Those needing assistance with emergency services should call the USCIS Contact Center at 800-375-5283.
USCIS Allows Reproduced Original Signatures During COVID-19
On March 20, 2020, USCIS announced that it will accept all benefit forms and documents with reproduced original signatures, for submissions dated on or after March 21, 2020, 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.
Consular Post Closures During COVID-19
On March 19, 2020, the Department of State (DOS) announced the suspension of immigrant and nonimmigrant visa application appointments at all consular posts due to COVID-19. In addition, travel restrictions prohibiting international travel to multiple countries around the world, including the United States, have been introduced to control spread of the pandemic.
The U.S. travel restrictions prevent travel by both immigrants and nonimmigrants from a broad range of countries and most have no pre-determined expiration date. The limitation on travel poses a problem for those in possession of immigrant visas that are only valid for six months. An immigrant visa may be issued for a period of validity no longer than six months. Since this maximum period is governed by regulation, consular officers do not have the authority to extend visa validity. On March 5, 2020, the DOS stated that if an immigrant visa has been issued, but the applicant cannot travel to the U.S. due to coronavirus-related travel restrictions, a consular post may be able to re-print a visa foil once travel becomes possible again. Consulates should be able to issue a new visa foil provided that all supporting documents, such as police certificates, medical examinations, etc., have not expired. Where any of the supporting documents expire while an immigrant is waiting to be able to travel to the U.S., the applicant will be required to obtain new supporting documents prior to the issuance of a new visa foil.
The DOS has compiled a list of embassy websites for country-specific information concerning COVID-19 at https://travel.state.gov/content/travel/en/traveladvisories/COVID-19-Country-Specific-Information.html. This page provides links to the COVID-19 dedicated page for each nation’s embassy, which includes information concerning health services, recommendations, and information concerning a reduction or temporary suspension of visa services. As resources allow, embassies and consulates will continue to provide urgent and emergency visa services. Services to U.S. citizens continue to be available. These Embassies will resume routine visa services as soon as possible, but are unable to provide a specific date at this time.
Automatic Extension of Driver Licenses During COVID-19
On March 19, 2020, Governor Pete Ricketts issued an executive order extending driver licenses and vehicle registrations expiring on or after March 1, 2020, for Nebraska residents. The extension will remain in effect until 30 days after the order is lifted.
Iowa Department of Transportation has also issued a COVID-19 statement: “If your driver’s license or vehicle registration is expired or expiring you do not need to renew at this time. We ask that you wait until the declared disaster has ended.”
Employment Verification During COVID-19
Form I-9, Employment Eligibility Verification requires that: (1) all new hires complete Section 1 of the Form I-9 on or before the first date of employment for pay; (2) the employer complete Section 2 of the Form I-9 after physically reviewing original documents; and (3) the employer complete Section 3 of the Form I-9 when re-verification is necessary.
On March 20, 2020, the Department of Homeland Security (DHS) announced flexibility in requirements for Form I-9 compliance during the COVID-19 pandemic. The flexibility includes an exercise of discretion associated with the physical presence requirements of reviewing the employee’s identity and employment authorization documents in the employee’s physical presence for Form I-9. However, employers must inspect the Section 2 documents remotely (e.g., over video, fax, or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days. Employers also should enter “COVID-19” as the reason for the physical inspection delay in the “Section 2 Additional Information” field once physical inspection takes place after normal operations resume. Once the documents have been physically inspected, the employer should add “Documents Physically Examined” with the date of inspection to the “Section 2 Additional Information” field on the Form I-9, or to Section 3 as appropriate. These provisions may be implemented by employers for a period of 60 days from the date of the notice or within 3 business days after the termination of the National Emergency, whichever comes first.
This provision only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in person verification of identity and employment eligibility documentation for Form I-9. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis. Employers should create and attach a file memo to any Form I-9, print or electronic, that was created during this period that explains the circumstances for creation of the form that resulted in untimely and/or practices that are outside of an employer’s normal Form I-9 creation and retention protocol. This memo should express the employer’s commitment to compliance with the employment verification requirements, describe the situation (attaching government advisories or other third-party documents such as the 3/13/20 Presidential Proclamation of National Emergency), who was affected, what steps were taken, and where relevant documentation can be found. Additionally, employers may designate an authorized representative to act on their behalf to complete Section 2. An authorized representative can be any person the employer designates to complete and sign Form I-9 on their behalf.
If a business is closed, then the Form I-9 requirements are tolled because it is not considered a “business day” for Form I-9 purposes. Again, the employer should note this on the Form I-9 and in an attached memo if the form was not timely completed.
Please note that employers must start using the new Form I-9 version (10/21/2019 edition date) no later than May 1, 2020.
U.S. Department of Labor Notice Requirements During COVID-19
U.S. Department of Labor (DOL) regulations contain notice requirements for both the H-1B and the PERM programs. The purpose of the notice requirements is to alert U.S. workers of the filing of the petition and to provide an opportunity to file complaints with the DOL. DOL regulations also designate H-1B and PERM benefits to employment at a specific worksite. COVID-19 has caused many workplaces to close, which in turn raises questions about how to fulfill these notice requirements during a partial or total quarantine. In addition, questions arise as to whether H-1B workers can work from home, and if so, what notice requirements apply, and whether an amended H-1B petition must be filed with USCIS.
- What notice requirements does DOL require for PERM and H-1B workers?
- H-1B Requirements: The H-1B program is jointly regulated by USCIS and DOL. DOL requires the filing and certification of a Labor Condition Application (LCA) prior to filing an H-1B petition. The LCA is intended to protect the jobs of U.S. workers by ensuring that H-1B workers are provided the same wages and benefits of similarly qualified U.S. workers. The DOL further requires a notice to U.S. workers that an H-1B worker is being hired. This notice can be provided either through a hard copy posting at the actual worksite(s) where the H-1B worker will be employed or through electronic notice. The electronic notice may be on the company’s intranet or in its newsletter, or if neither is available, via direct e-mail to affected employees. Notice is required to be provided on or before the date the H-1B worker begins work at the worksite.
- PERM Requirements: The PERM regulations also require that prior to filing a PERM (labor certification application) with the DOL that the employer notify its employees that it seeks to fill a specific vacancy. The PERM regulations provide that the employer provide notice of the vacancy to the collective bargaining representative, if applicable, or post a hard copy of the Notice of Filing (NOF) at the actual worksite where the worker will be employed. Unlike the H-1B regulations, the PERM regulations do not provide an alternate electronic notification method, but require that in addition to a hard copy posting, the employer provide notification in any and all in-house media, whether printed or electronic, that the employer normally uses to recruit for similar positions. The NOF must be posted for at least 10 consecutive business days and completed at least 30 days before the date on which the employer submits the Form ETA-9089. The NOF must be posted during the same period of time as the employer conducts its recruitment efforts, which is between 30 days and 180 days before filing the Form ETA-9089.
- How Can Employers Comply with DOL Notice Requirements During a Quarantine?
The H-1B and PERM regulations specify that the notice to employees must be visible. Notices are clearly not visible in an office where no one is working.
- H-1B Notice: In the H-1B context, the best approach would be to provide notice to workers electronically, either through the company’s intranet or through direct email. If employees lack computer access, hard copies of the notice can be sent to each employee through a hard copy mailing. Due to the COVID-19 pandemic, 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 worksite.
- PERM Notice: The PERM context is more difficult because the electronic notice is required in addition to the hard copy NOF posting, and there are no permissible alternatives to the hard copy of the NOF. If possible, wait until after the quarantine ends to post the NOF. If the NOF must be posted during a quarantine when few or no workers will see the notice, then the hard copy should still be posted for ten consecutive business days at the actual worksite location and the employer should consider providing additional notice to employees who are working from home in the manner described in the H-1B regulations for electronic notification, including direct email to employees or direct hard copy mailing of the NOF to affected employees. DOL will now accept NOFs posted within 60 days after the deadlines have passed in order to provide sufficient time for employers to file their applications, provided that the employer initiated its recruitment within the 180 days preceding the President’s emergency declaration on March 13, 2020.
- Are H-1B Employees Allowed to Work from Home?
LCA regulations place no restrictions on H-1B employees’ worksite locations. Thus, H-1B employees are allowed to work from home. If an employee works from home, LCA regulations require that LCA posting notices be posted in his/her home and then stored in the employer’s Public Access File after they are taken down. If the employee has the option to work from home or works both at the employer’s offices and at his/her home, notices must be posted at each worksite location prior to filing the LCA. It should also be noted that employers must afford H-1B workers with working conditions “on the same basis and in accordance with the same criteria as it affords to its U.S. worker employees.” Therefore, if an employer allows U.S. workers the option to work from home, the employer must also afford this option to H-1B workers.
- What Type of Notice or LCA Filing is Required to Allow H-1B Employees to Work from Home?
If, at the time of filing an H-1B petition, the employer offers the option to work from home, LCA posting notices should be posted both at the employer’s office where the H-1B worker will work and at his/her home office.
If the work-from-home option is not offered at the time of filing, but is later added as an option, DOL guidance provides that the employer need not file a new LCA for the worksite if it is within the same metropolitan statistical area (MSA). If the employee’s home is outside the MSA in which his/her worksite is located, then the following rules apply:
- First, an employer can use the “Short Term Placement” option. This allows H-1B employers to place H-1B workers at a worksite not listed on its approved LCA for up to 30 workdays each year. “Workdays” are days actually worked and do not include weekends and holidays. It could therefore cover at least 6 weeks of work at a temporary location.
- Second, 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 of the LCA notice requirements. In addition, an amended petition must be filed.
- Is an Amended H-1B Petition Required to Allow an H-1B Employee to Work from Home?
An amended H-1B petition is only required if the employer is required to file a new LCA. Thus, this requirement would come into play after exhausting the “Short Term Placement” provision and only for employees who live outside of the MSA where they work.
We will continue to provide updates as additional information becomes available.
If you have any questions about this alert, please contact the Labor, Employment and Benefits members of our COVID-19 Response Team indentified below:
Diana Morales McFarland
Contact information for the complete McGrath North’s COVID-19 Response Team can be found here.
For information regarding additional business-related concerns centered around COVID-19, please visit our COVID-19 Resource Guide here.