Federal authorities have recently issued a large number of new policies, guidance, etc., in response to the coronavirus pandemic. These include the following:

  • Flexibility in Submitting Required Signatures on Applications
  • The USCIS has announced it will accept application forms with reproduced original signatures.
  • It already accepts certain petition forms electronically for processing and this new announcement will now also accept those that have previously required original / “wet ink” signatures.
  • Petitioners must retain the documents containing the original / “wet ink” signatures because the USCIS can still request these at any time.
  • USCIS Offices Closed from March 18—April 1
  • The USCIS has halted all in-person services at its field offices, asylum offices and Application Support Centers (ASCs) until April 1, 2020.
  • It will send notices to those with scheduled appointments affected by the closures and issue new notices when matters are rescheduled.

LCA Postings for H-1Bs

With more and more states issuing “Stay at Home” orders, H-1B workers are being assigned to locations not included in their Labor Condition Applications (LCAs).

The Department of Labor has indicated that if a worker is simply moving to a new job location within the same area of intended employment, a new LCA is not needed. The “area of intended employment” can include the commuting distance between a person’s home and worksite.

(As an aside, if a new LCA is needed, employers are required to also submit an application to amend the corresponding H-1B application for the employee.)

If an H-1B worker will be working from home, the employer must ensure a new Notice of Filing is posted at the person’s home for at least 10 consecutive business days.

In addition, there are short-term placement provisions in the federal regulations if an H-1B employee is moved to an unintended worksite outside the area of intended employment.
Department of Labor Extends Deadlines for Responses and Initial Filings
The Department of Labor (DOL) has indicated that responses related to prevailing wage determination requests, audits, Notices of Deficiency, submission of recruiting reports, business verification and sponsorship documentation, supervised recruitment and other requests for information with response dates from March 13, 2020, through May 12, 2020, can be submitted by May 12, 2020.

In addition, regarding applications for permanent labor certification, the DOL will accept recruitment completed within 60 days after regulatory guidelines have passed as long as the employer started recruiting with the 180 days of President Trump’s emergency declaration on March 13, 2020.

Employers are normally required to conduct their recruiting efforts between 180 and 30 days before filing their applications.

State Department Suspends Routine Visa Services

The U.S. State Department has temporarily suspended routine visa services at all U.S. Consulates worldwide. Urgent and emergency services will continue.

In addition, they will continue to provide services to U.S. citizens.

Flexibility in I-9 Compliance Requirements

Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Section 2 documents remotely (fax, email, video, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2.

Employers also should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection takes place after normal operations resume. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or section 3 as appropriate.

These provisions may be implemented by employers for 60 days beginning March 20, 2020, or within three business days after the termination of the National Emergency, whichever comes first.

Employers who choose this option must provide written documentation of their remote onboarding and telework policy for each employee.

Once normal operations resume, all employees who were onboarded using remote verification, must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or Section 3 as appropriate.

For more information about this and other immigration issues, please contact the author of this alert, James G. Aldrich, Jr., at [email protected] or 248-203-0583.

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