Frank A. Novak

Frank A. Novak

  585.231.1406

  fnovak@hselaw.com

LEGALcurrents®

As U.S. employers consider measures such as remote work arrangements, unpaid furloughs, and reductions in workforce in response to the COVID-19 pandemic, it is critical to remember that these measures may carry specific implications for foreign national employees. In addition, agencies at the state and federal level have recently announced significant policy changes that may impact an employer’s immigration program from discontinuing premium processing to expediting New York State physician licensure.

Remote Work Arrangements
While many visas allow for remote work without restriction, certain visa categories are location specific, meaning advanced planning may be required to authorize remote work arrangements:

H-1B Visas: Generally speaking, employees in H-1B status may work from home without filing a new H-1B petition, so long as the employee’s home is within normal commuting distance of the worksite. Regulations require that the employee post a labor condition application (LCA) posting certification at the home office to authorize it as an H-1B worksite. (Note that the purpose of the notice is to alert the employer’s other employees of the worksites at which the H-1B will be working.) The employer must then retain the posting certification in the employee’s H-1B public inspection file. Employers should work with counsel to prepare compliant posting certifications. While such postings are usually required on or before the employee’s first day at the new worksite, the U.S. Department of Labor (DOL) has provided that in light of the COVID-19 pandemic, H-1B workers have 30 calendar days to post the notice at the new worksite. 

This provision only applies to home offices within normal commuting distance of the H-1B worksite. If an H-1B employee wishes to work remotely outside of normal commuting distance, that may require a new H-1B petition, although there are some exceptions available for short-term placements. When considering a home worksite, note that the H-1B prevailing wage requirement is tied to the Metropolitan Statistical Area (MSA) where the worksite is located. Where an employee lives within normal commuting distance of the H-1B worksite but within a different MSA, this may trigger a new H-1B prevailing wage requirement.

Employers must keep in mind that the LCA posting certification only authorizes a specific worksite. If an employee moves to a new home or seeks to work from a different remote location, this would require a new LCA posting certification. Employers should make clear that work authorization is address-specific, and that the employee must notify the employer before making any change to a remote work address.

F-1 Visas: International students in F-1 status normally get one year of work authorization following graduation, known as optional practical training (OPT). Some students with STEM degrees are eligible for an additional two years of OPT work authorization, called the STEM OPT extension. Remote work is perfectly permissible during the first year of OPT.

Employees working on the two-year STEM OPT extension are more restricted with respect to remote work. To authorize remote work, both the employer and the employee must together complete a new Form I-983 training plan and submit the updated training plan to the F-1 employee’s designated school official (DSO). The updated training plan must list the remote work address and explain how the employer will remotely supervise the student’s work. The immigration service generally wants to see on-site supervision, so employers should be prepared to explain in detail how supervision will continue, such as by frequent calls or videoconferences.

Unpaid Furloughs
In many cases, a foreign national employee’s visa status in the U.S. is tied to ongoing employment. Accordingly, unpaid furloughs may present significant immigration planning issues. For example, employers are prohibited from placing H-1B workers on unpaid leave due to lack of available work - also known as benching. Regulations require employers to continue paying wages to H-1B workers during any benching period. However, unpaid leave for employee-related reasons, such as employee illness or caring for an ill relative, is permissible.

Hence, if the COVID-19 pandemic results in lack of available work, an employer must either continue to pay the H-1B employee, terminate the H-1B employee, or file an amended H-1B petition allowing part-time employment should the employer have enough work to sustain part-time employment. 

If the COVID-19 pandemic prevents the H-1B employee from working on account of illness or quarantine, then an unpaid furlough is permissible. The government has not opined on the permissibility of unpaid furloughs where a state government imposes a shelter-in-place requirement preventing the H-1B employee from working. Because the shelter-in-place order is not an employer-created circumstance, an unpaid furlough could arguably be permissible in this case. However, because of the complexities involved, employers should consult with legal counsel before imposing an unpaid furlough on H-1B workers.

F-1 students working pursuant to OPT are limited in the amount of time they can be unemployed without violating their status. Specifically, employees on their first year of OPT are limited to 90 days of unemployment, and employees on their so-called STEM OPT extension are permitted an additional 60 days of unemployment. So long as the employer does not terminate the employee, an unpaid furlough would not constitute unemployment, and thus would not count toward this maximum limit of unemployment.

Regulations require that STEM OPT F-1 employees work at least 20 hours each week, except for time off taken under leave-related policies applicable to similarly situated U.S. workers. Examples of permissible leave include parental leave, international travel, or year-end plant shutdowns. While the government has not addressed unpaid furloughs in this circumstance, one may reasonably argue that an unpaid furlough stemming from a state government’s shelter-in-place order would be permissible and would not violate the 20-hour weekly requirement. In contrast, employer mandated furloughs based on unavailability of work may violate this 20-hour weekly requirement. Should furloughs become necessary, employers should work with counsel to plan appropriately.

Note that employers must offer STEM OPT F-1 employees terms and conditions of employment commensurate to those offered to U.S. workers. Thus, employers must assess unpaid furloughs carefully to ensure commensurate treatment.

Reductions in Force
Certain visa categories have specific requirements relating to termination. For example, H-1B employers must notify the immigration service and offer the employee the reasonable cost of return transportation to the employee’s home country. Note that return transportation does not include costs relating to the employee’s family members or belongings. Employers are not obligated to offer return transportation costs where the employee decides to remain in the U.S.  

Employers terminating F-1 STEM OPT employees must notify the employee’s designated school official within 10 days.

In many cases, terminated employees are entitled to a 60-day ‘grace period’ following termination to remain in the U.S. and seek some other form of visa sponsorship. Specifically, this grace period is available to foreign nationals in the following statuses: E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN. This grace period is limited to the employee’s established status expiration. Put differently, if an employee is terminated less than 60 days before the current status expiration, the ‘grace period’ will be limited to the status expiration date.

Increased I-9 Flexibility
On March 20, 2020, the U.S. Department of Homeland Security (DHS) announced a relaxation of employers’ Form I-9 document review requirements. Employers complete the Form I-9 for every newly hired employee to verify identity and work authorization. Normally, employers must inspect employee documents in person within three days of the employee’s start date.

In response to the COVID-19 pandemic, DHS is allowing employers working on a fully remote basis to inspect new hire documents remotely, such as by video link, fax, or email. The employer must complete this remote review within three days of the employment start date and retain copies of the remotely reviewed documents. The employer must then complete an in-person review of the documents within three days of resuming normal business operations by writing “COVID-19 - documents physically examined on”, along with the date, in the Section 2 additional information box.

Note that this policy is only available to fully remote employers, and is generally unavailable to employers with employees still working on-site. Employers availing themselves of this policy must document their remote onboarding and telework policy for each affected employee. This policy will remain in place for at least 60 days or until the end of the declared national emergency relating to COVID-19.

Suspension of Premium Processing Service
On March 20, 2020, U.S. Citizenship and Immigration Services (USCIS) announced a suspension of its Premium Processing service in response to the COVID-19 pandemic. Premium Processing guarantees a government response within 15 days for a range of immigration benefit requests for an additional $1,440 filing fee. This service can be critically important for staffing and immigration planning, as normal processing times for many visa categories routinely exceed six months.

Employers should work with counsel on an urgent basis to understand how this suspension may impact immigration planning for their foreign national employees. This may pose particularly significant issues for foreign nationals currently outside the U.S. and those seeking to change from one status to another. While the Premium Processing service is suspended, some cases may still qualify for an expedited adjudication on a case-by-case basis. For example, doctors seeking a visa to practice medicine in a high-need area may qualify for an expedite.  

COVID-19 Travel Restrictions
Effective March 21, 2020, DHS announced agreements with Canada and Mexico to prohibit all non-essential land border crossings with the U.S. The agreements allow for continued “essential” travel, which includes U.S. citizens and permanent residents returning to the U.S., individuals traveling to attend educational institutions, individuals traveling to work in the U.S., individuals engaged in lawful cross-border trade (such as truck drivers) and several other exempted categories. While travel to the U.S. for work is considered essential, early reports suggest that U.S. border officers are turning away foreign nationals seeking entry to the U.S. with work-authorized status. These restrictions will remain in effect for at least 30 days, and apply only to land ports of entry, passenger rail, and ferry travel. Air travel is not currently restricted.

These restrictions build on a series of presidential proclamations that ban the entry to the U.S. by foreign nationals present in China, Iran, the Schengen Area (26 European countries), the United Kingdom, or Ireland in the 14 days prior to seeking admission to the U.S. Those travel restrictions remain in place.

Given the uncertainty around these travel restrictions and the possibility of new restrictions, we recommend foreign nationals remain in the U.S., to the extent possible, and avoid international travel. 

Allowing for Photocopied Signatures
On March 20, 2020, USCIS announced that it will immediately accept photocopied signatures for all immigration benefit requests. For many filings, USCIS normally requires original “wet ink” signatures. While this policy will provide some much-needed flexibility, it still prohibits the use of electronic signatures – only a copy of a “wet ink” signature will be accepted.

USCIS notes that employers should keep the original “wet ink” signed document on file, and reserves the right to inspect the original at a later date.  

New York State Announces Medical License Reciprocity
On March 18, 2020, New York State Governor Andrew Cuomo issued an executive order temporarily recognizing other states’ licenses for certain medical professionals including physicians, physician assistants, advanced practice registered nurses, registered nurses, and licensed practical nurses. Governor Cuomo has also ordered expedited medical license processing.

H-1B visa sponsorship normally requires foreign national physicians to obtain a valid state medical license before visa approval. This can cause significant delay, as New York State can take approximately eight months to issue a medical license. This executive order may greatly ease the timeline for employers sponsoring foreign national doctors for H-1B visa status.

If you have any questions regarding this LEGALcurrents, please do not hesitate to contact any member of the firm’s Immigration practice group at 585.232.6500.


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