The international response to COVID-19 is causing significant hardship for employers and foreign national workers and will prevent many employers, petitioners, and visa applicants to experience longer-than normal processing times for U.S. Citizenship and Immigration Services (USCIS)- related petitions and applications. Overseas visa applicants now face significant challenges due to international travel bans and the closure of many U.S. embassies to visa interviews. At the same time, the implementation of remote work policies creates compliance issues for employers of a foreign national workforce. Recent developments include:
While the USCIS service centers remain operational at this time, the implementation of work from home requirements will undoubtedly raise compliance questions for employers of H-1B workers. Specific H-1B Labor Condition Application requirements regarding work location and number of hours worked create complications for employees shifting to remote work arrangements. Further, the filing of an H-1B petition requires that adequate notice be provided to U.S. workers regarding the sponsorship of H-1B workers, raising the question of how to legally provide notice to an empty worksite. A similar notice requirement applies to the PERM Labor Certification, or “labor market” test required for the green card sponsorship of many foreign national workers.
Employers and/or foreign nationals facing immigration compliance issues as a result of COVID-19 should be sure to consult with immigration counsel regarding their options. While there will certainly be delays and immigration challenges, it is critical that foreign nationals continue to maintain lawful status, and that employers remain vigilant in maintaining the employment authorization of their foreign national workers.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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