The recent outbreak of the novel coronavirus (COVID-19) in the United States has led to worry and uncertainty across the country. As employers begin to develop plans to address some of the novel issues presented and combat the spread of the virus within their workforce, foreign national employees who are in the United States may present unique considerations in order to remain in compliance with the terms of their visas:
- Travel: Harris Beach immigration attorney Danielle Rizzo previously discussed the initial Travel Ban that went into effect on February 2, 2020, prohibiting the entry into the United States of any foreign national who has been physically present within the People’s Republic of China within the 14-day period preceding their entry or attempted entry to the United States. This ban was subsequently expanded to include those who had traveled to Iran. Most recently, President Donald Trump issued a Presidential Proclamation that went into effect at 11:59pm on March 13, 2020, and is expected to be in place for an initial period of 30 days. The proclamation suspends and limits the entry, as immigrants or nonimmigrants, of individuals who were physically present within the Schengen Area during the 14-day period preceding their entry or attempted entry. This latest iteration of the virus-related Travel Ban therefore applies to nearly all European countries. Although the United Kingdom was initially exempt from this ban, it has been reported that both the UK and Ireland will be added as of March 16, 2020. These travel restrictions do not apply to: U.S. citizens, Lawful Permanent Residents, or their spouses; parents or legal guardians of minor (under age 21) U.S. citizens/Permanent Residents; children of U.S. citizens or Permanent Residents; and other specific categories of individuals set forth in the Proclamation.
This remains a very fluid issue, with other countries potentially being added or removed from the list as the situation evolves in coming weeks on very short notice.
- Government office closures for visa/immigration services: Several U.S. consular posts abroad have begun alerting applicants of reduced or temporarily suspended visa services. The Department of State has compiled a list of embassy websites for country-specific information concerning COVID-19, which we recommend that visa applicants consult often prior to planning any travel abroad — even to countries that may not appear on the “Travel Ban” list. This page provides links to the COVID-19 dedicated page for each nation’s embassy and includes information concerning health services, recommendations, and in some cases, information concerning a reduction or temporary suspension of visa services.
Similarly, applicants for immigration benefits (change or extension of nonimmigrant status, adjustment to lawful permanent resident status) in the United States should consult USCIS’s Office Closings webpage to ensure that the appropriate USCIS field office has not been closed. For those who have a scheduled appointment or interview, USCIS encourages those applicants who are experiencing flu-like symptoms, who have traveled internationally within the 14 days prior to their appointment, or who may have been exposed to COVID-19, to reschedule their appointment/interview, without penalty.
- H-1B/LCA Compliance for Remote Work: As part of their preparedness and response plans, many employers have begun encouraging, and in some cases requiring, employees to work remotely or work from home. Many colleges and universities have transitioned to virtual instruction for the remainder of the Spring semester, avoiding the need for faculty and staff to be present on campus to perform their job duties.
For foreign-national employees working pursuant to a nonimmigrant visa, there may be additional steps an employer must take to ensure continued compliance with the employee’s visa classification. In the context of employees in H-1B visa status, employers must be mindful of the H-1B regulations and in particular the employer’s obligations imposed in connection with the Labor Condition Application submitted as part of the H-1B visa petition. In many cases, a change in an H-1B employee’s work location from campus or from the employer’s office location to working from home or some other remote location would require that the LCA be posted at the new worksite and the Public Access File updated accordingly. If, however, the work location will be in a different geographical area (i.e., in a different Metropolitan Statistical Area or outside of “normal commuting distance”) from the worksite listed on the LCA, the employer may be required to file an amended H-1B petition with USCIS to remain in compliance with the H-1B regulations.
Depending on the employee’s visa classification, there may be other unique compliance implications to the employer arising out of work from home policies, office closures or work stoppages, and other changes to an employer’s normal business operations. We recommend that employers consult with a member of the Harris Beach immigration team to discuss any such changes and the ensuing impacts on foreign-national employees.
- I-9 Compliance for New Hires: Generally, when on-boarding a new employee, Form I-9 must be completed no later than the third business day after the employee starts work for pay. As part of this process, the employer must inspect, in person, the employee’s documents showing identity and work authorization. The employee’s documents must be physically examined by the employer, and, therefore, this process cannot be completed via webcam, Skype or other video conferencing technology. This may present challenges in situations where, due to quarantines or remote work plans, an employer’s Human Resources staff is not able to meet in person with a new hire to complete the I-9 within three days of the start date.
As a reminder, employers may designate an authorized representative to fill out Forms I-9 on behalf of their company. When completing the I-9 on behalf of the employer, the designated/authorized representative must physically examine, with the employee being physically present, each document presented to determine if it reasonably appears to be genuine and relates to the employee presenting it. The authorized representative does not have to be an employee of the company/employer, and the Department of Homeland Security does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes. Note, however, that if an authorized representative fills out Form I-9 on behalf on the employer, the employer is still liable for any violations in connection with the form or the verification process. Therefore, employers should develop a protocol for selecting/designating an appropriate representative to complete I-9s on its behalf if necessary, as well as a procedure to review any such I-9s to ensure that the I-9 process for remote hires is conducted in a compliant manner.
Because of the highly fluid and rapidly changing nature of the current situation, the information provided here may quickly become out of date. We therefore encourage employers and employees alike to contact a member of the Harris Beach immigration practice group with any questions particular to the challenges faced by U.S. visa holders as this situation evolves.
Our Immigration Law Practice Group includes immigration attorneys that work across New York state in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices. Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure that employers are able to hire, transfer, and retain the brightest and best non-U.S. talent.