Essential COVID-19 Immigration Planning For US Employers

[Note to readers: Immigration challenges and government responses triggered by the spread of COVID-19 are developing rapidly. Not all questions can be addressed fully in this Alert. Employers seeking updated guidance should regularly check Coronavirus (COVID-19), and may reach out to Seyfarth's business immigration lawyersor attorneys in our Government Relations & Policygroup for guidance in specific situations.]

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Seyfarth Synopsis: COVID-19 has upended the world. Governments and businesses are racing to respond. The US legal immigration system for sponsoring and employing noncitizens is no exception. American employers must plan around existing, inflexible and outdated immigration laws so that immigration compliance can still be maintained, and current noncitizen employees may continue working in the US without interruption. This Employer Alert provides the latest information, analysis and recommendations that US businesses should consider as they restructure operations in the wake of the virus.

Key Employer Takeaways:

The COVID-19 pandemic will substantially disrupt the functioning of the legal immigration system in the United States, and thus will harm the business operations of companies relying on lawfully employed noncitizens. Government offices will be closed and services will be drastically reduced because in-person interviews, biometrics appointments and decisions on visas and immigration benefits requests that must be made by officers at US Citizenship and Immigration Services (USCIS) and other immigration agencies will be long delayed. If employers close their offices and adopt work-from-home policies to avoid spreading the coronavirus, they must act quickly to ensure continuing immigration compliance and preserve the ability to maintain and extend the immigration status and employment eligibility of their noncitizen workers. Maintenance of status may be futher complicated should USCIS restrict its Premium Processing Service. Other requests for expedited adjudication that seek extraordinary immigration relief based on humanitarian or national-interest grounds are likely to be denied. A substantial number of noncitizen workers and business visitors may find that their nonimmigrant visa status cannot be extended, with the result that workers must be terminated from employment, and persons who are out of status or unlawfully present, if they remain in the US, do so in violation of the immigration laws. Business visitors may need to file extensions or apply for an additional 30-day period for "satisfactory departure" based on on a showing of inability to travel. Businesses that instruct their H-1B (specialty occupation) employees to work from home must still comply with US Department of Labor (DOL) rules on the geographic scope of existing LCAs (Labor Condition Applications). H-1B compliance will be simpler if the H-1B employee working from a home office lives within "normal" commuting distance from the employer facility listed on the LCA. Normal commutes are usually within 50 miles, but greater distances of up to 70 miles or more may be possible. The US Department of Labor's LCA exemptions for short-term placements are not likely to be available or useful. If a new LCA and the filing of a new or amended H-1B petition with USCIS are required, special arrangements must be made for hard-copy worksite posting or electronic notification of the terms of the LCA to affected employees. Employers of intracompany L-1 managers, executives and staff with specialized knowledge must maintain an office from which to continue doing business. While nothing prohibits L-1 employers from adopting a work-from-home policy, they should be aware that USCIS, through its FDNS (Fraud Detection and National Security) unit, may conduct unannounced site visits to investigate activities at the office listed on the L-1 employer's visa petitions. FDNS site visits may trigger the revocation of visa petitions for existing L-1 workers, thus requiring termination of L-1 employment. Employers should be prepared to vigorously oppose any notices of intent to revoke L-1 visa petitions. (These same FDNS site-visit risks apply to employers of H-1B workers.) L-1 employers with approved blanket petitions should expect to file more burdensome "individual" L-1 petition extension requests with USCIS, since consular adjudication of blanket L-1 visa applications are likely to be unavailable due to travel constraints and consular post closings or reductions in visa services. Early reports from US Consulates in Western Europe confirm that visa appointments currently scheduled for the months of March and April have been cancelled and will be rescheduled for the second half of May, at the earliest. Businesses should instruct their nonimmigrant workers in the US to refrain from foreign travel for visa stamping, and expect to file more work visa petitions requesting status extensions with USCIS. Many F-1 students who are currently completing their academic programs are moving to virtual/online classes for the rest of the semester. We are hearing reports of universities advising these students to return to their home countries to complete the semester. We strongly recommend that these students apply for Optional Practical Training (OPT) and file their I-765 Application for Employment Authorization before they depart the US, Employers sponsoring noncitizen employees for PERM labor certification as a preliminary step to an employment-based green card must deal with DOL's hard-copy notice posting requirement at the worksite - a challenge if COVID-19 precautions have triggered an office closure. Employers must also address the delays in PERM recruitment efforts if the virus leads to reductions in force and layoffs, and the resulting challenge of extending H-1B visa status beyond the standard six-year visa-maxout period. Employers must be sensitive and adapt procedures to comply to the extent possible with the prohibitions against unauthorized employment and the timing and deadline constraints imposed under the Form I-9 (Employment Eligibility Verification) and E-Verify programs. Full compliance may not always be possible. To the extent that required I-9 procedures are either omitted or delayed, employers should note the event and provide an explanation in a separate memorandum which may be helpful if the government later investigates. Employers should immediately engage in government advocacy, directly and through business and trade organizations, to urge Congress, the Executive Branch, and federal immigration agencies to relax or excuse the harsh immigration compliance and maintenance of status deadlines and penalties that exist under current law. COVID-19 fallout has simply made full compliance unattainable in many instances. In appropriate cases, employers should consider pursuing civil litigation against federal immigration agencies for any agency's decisions that can be shown to be arbitrary, capricious, an abuse of discretion or otherwise unlawful. Not since the 1918 Spanish Flu have nations of the world witnessed anything even close to the monumental threats to public health and business continuity spawned by the COVID-19 pandemic.

Prudent employers are responding by announcing measures to limit the spread of the coronavirus, adopting work-from-home policies, recommending 14-day quarantines of persons facing suspected exposure to the virus, cancelling conferences and large meetings, reducing or eliminating domestic and foreign travel, moving as much work as possible online, and applying other on-the-fly mitigation strategies.

As governmental authorities likewise scurry to devise and implement measures to mitigate foreseeable harm, US businesses with active programs for the sponsorship of foreign workers under current immigration laws, regulations and agency practices cannot wait for immediate guidance from federal authorities. Employers must make decisions in real time, exercising their best business judgment, while hoping that federal authorities, going forward, will acknowledge employer actions taken in good faith to comply with immigration laws and regulations that were promulgated on the now-inapplicable premise that the world is functioning in an orderly way.

Impact on the US Government. Already, COVID-19's impact is apparent with the issuance of Presidential proclamations banning entry to the US of specified classes of travelers from China on January 31, and from Europe on March 11. In addition, US Citizenship and Immigration Services (USCIS), the component agency of the Department of Homeland Security (DHS) charged with administering the legal immigration system and deciding on requests for immigration benefits, has responded.

The agency has temporarily closed its field office operations and cancelled naturalization oath ceremonies in the state of Washington, the first area identified as a COVID-19 hot spot (the Seattle Immigration Court has also been closed temporarily).

In addition, USCIS has issued a March 9 letter to the federal employee union representing its immigration officers that it will be offering "remote work" agreements to multiple employees. Although the letter does not mention COVID-19, remote work agreements could allow USCIS to more quickly adopt virus-mitigation strategies. This is because they "[enable] employees to work at an approved official duty station (for example, the employee's residence) outside the local commuting area (generally, 50 miles...