Immigration Compliance During COVID-19

The outbreak of COVID-19 has led to employees working from home, and in turn, empty or near empty offices.  This raises new compliance questions.  For one, DOL regulations require employers to post notices before filing H-1Bs and PERMs. The notices are intended to inform U.S. workers of the filing, but with office closures, how do employers post such notices and does posting a notice in an empty office meet notice requirements?  Secondly, can H-1B employees legally work from home if their home was not listed as a worksite in the H-1B petition, and if so, are there additional notice requirements, and when is filing an amended H-1B petition required?  Finally, can a company I-9 its employees remotely?

Notice Requirement for H-1B

H-1B regulations require the filing of a Labor Condition Application (LCA) prior to filing the H-1B petition. A key requirement is the provision of notice to U.S. workers that an H-1B worker is being hired by providing notice, either through a hard-copy posting at the actual worksite(s) or through electronic notice. An electronic notice may be posted on the company’s intranet or via direct e-mail to affected employees.

Notice Requirement for PERM

PERM regulations similarly require the employer to notify its workforce that it intends to file a PERM application.  Employers must meet this notice requirement by posting a hard copy of the Notice of Filing (NOF) at the actual worksite where the beneficiary will be employed. Unlike H-1B regulations, electronic notification is not an option (although if the employer generally uses in-house media, whether printed or electronic, to announce openings in similar positions, it must also provide notice in its in-house media, in addition to a hard copy posting).

Complying with Notice Requirements During COVID-19 Office Closures

In general, DOL uses a good faith compliance standard in enforcing both LCA and PERM regulations. In both contexts, regulations indicate that the notice must be visible to U.S. workers, but notices are not visible in an office if no one is working.

In the H-1B context, the most conservative approach would be to provide notice to workers electronically either via the company’s intranet or, if it doesn’t have one, via email.  If notice is provided electronically, a hard copy posting would not be necessary.

The PERM context is trickier because there are no permissible alternatives to posting a hard copy of the NOF.  Companies may consider the following work-around with the understanding that DOL may or may not agree with alternative means of posting the NOF:

1. Post the hard copy at the actual worksite location even though few/no workers will see it, thus complying with the black letter regulatory requirements, and consider providing additional notice to employees who are working from home electronically in the manner described in the H-1B regulations (e.g., intranet or direct email), thus complying with the spirit of the regulatory requirement; or
2. Post the NOF after the quarantine ends at the expense of delaying PERM filing for an indefinite period. This may not be feasible if the sponsored worker is running out of H-1B time.

H-1B Employees Working From Home

If the work-from-home option was not contemplated at the time of LCA and H-1B filing but is now desired or required, DOL guidance provides that the employer need not file a new LCA for the employee’s residence if it is within the same metropolitan statistical area (MSA).  If the H-1B worker’s home is within the same MSA as the employer’s office, the LCA notice for the employer’s office merely needs to be re-posted at the employee’s home for ten consecutive business days.

If the employee’s home is outside the MSA in which his or her authorized worksite is located:

1. First, the “Short Term Placement” rule permits placing H-1B workers at a worksite not listed on its approved LCA for up to 30 workdays each calendar year. “Workdays” do not include weekends and holidays and therefore this rule typically allow 6 weeks of work at a temporary location.
2. Second, if working from home lasts longer than 30 workdays, the employer will need to file a new LCA as well as an amended H-1B petition to cover both worksites (per USCIS guidance, an amended H-1B petition is required if the employer is required to file a new LCA). 

Employment Verification During COVID-19 Outbreak

As of this date, the mandate to complete a Form I-9 (and E-Verify if applicable) has not been suspended and the law requiring physical inspection of documents for I-9 purposes is still in effect.  This rules out verifying remotely through Skype, Zoom or other video communication.  

If you need to I-9 an employee remotely, the best strategy is to authorize an agent to act on the employer’s behalf to complete Section 2 (or re-verify employment authorization). If an agent is used to complete Section 2, the employer should review the Form I-9 as soon as possible and take any required corrective action (clearly noting when changes were made and by whom on the face of the document) as quickly as possible.

ILG will continue to monitor the impact of COVID-19 on immigration compliance requirements. As we receive more information, we will provide further updates.