Employers face many urgent issues in responding to the US outbreak of the novel coronavirus, COVID‑19. The disease has forced employers to develop and implement workplace safety, mitigation, and business continuity plans. These may include allowing employees to work from home or from alternate unaffected worksites, as well as outsourcing I-9 document reviews to agents in remote locations. Economic slowdowns have occurred in some sectors due to the global pandemic, requiring some companies to consider or implement temporary employee furloughs or even reductions in force.
Employers should remain aware that such extraordinary workplace actions can have a special impact on foreign employees with work-authorized visas and can trigger additional employer obligations under US immigration law. This article addresses those consequences. A subsequent article will address the impact of COVID-19 on employee travel. All of our COVID-19 articles will be updated as new information becomes available.
Worksite Changes: If an H-1B or E-3 employee’s worksite changes – even if that simply means the employee will work from home for an extended period – an employer may need to do one, more than one, or none of the following, depending on the circumstances:
- Limit the number of days the employee spends at the new worksite;
- Post a notice at the new worksite;
- File a new Labor Condition Application with the US Department of Labor;
- File an amended petition with US Citizenship and Immigration Services; and/or
- Restrict the employee’s international travel.
It is important that employers review each foreign employee’s specific circumstances with immigration counsel in order to ensure ongoing compliance with immigration law.
Terminations and Layoffs: Terminating or laying off a foreign employee, regardless of the employee’s visa type, also has immigration consequences. Termination for any reason, because it constitutes a “material change” to an employee’s pre-approved work authorization, generally triggers the requirement to notify the relevant government agencies. In the case of an F-1 student who is working under STEM OPT, termination, as well as other material changes to the student’s training plan, requires notification to the employee’s overseeing university. For H-1B, O-1, and E-3 employees, termination may also require the employer to pay reasonable costs of return transportation to the employee’s home country. If transportation costs are offered or paid, employers should have these employees execute a carefully worded release to demonstrate compliance and avoid future claims for reimbursement.
Furloughs: Placing foreign employees on unpaid furlough can have adverse consequences for both the employee and the employer. H-1B and E-3 workers cannot be benched or furloughed without pay because of the prevailing wage requirements in those visa categories. Exempting these workers from the furlough is an option for remaining in compliance, but if the workers cannot be exempted for business reasons, then they must be paid their normal wages while on furlough. This is true even if the employee spends the furlough outside the United States. Since employers may not restrict or limit the participation of their H-1B and E-3 employees in work-related benefits, it is not advisable to require these employees to take vacation during a furlough in order to avoid paying them for this time off. If the employee voluntarily chooses to take vacation time, this is acceptable under immigration regulations.
I-9 Compliance: Finally, I-9 regulations require an employer’s designated representative to be physically present with a new hire or a current employee whose employment eligibility is expiring in order to examine the original identity and employment eligibility documents the employee presents. Regulations do not allow this to be done via webcam or other remote technology solutions. During closures, remote working, or short-staffing caused by COVID-19, employers may wish to designate an authorized representative at the employee’s location to complete document review. The same individual is legally required to complete and sign Section 2 (or Section 3, for reverifications) of Form I-9. The individual does not have to be a notary public, and no separate agreement or contract between the employer and the agent is required. However, the employer is directly liable for any errors or omissions by the agent, so employers should exercise care in choosing an I-9 agent, provide the agent with careful instructions and best practices, and carefully review all I-9s completed by the agent in case corrections need to be made.
International Worksites: Some employees may choose to work at an employer’s worksite outside the United States during COVID-19. That choice may trigger tax consequences that are beyond the scope of this article, but that should be considered. Depending on the nationality of the relocating employee, a foreign worksite choice may also trigger immigration requirements, which must be assessed on a case‑by-case basis. In addition, if employees at a US company’s international worksites have asked for alternative work arrangements, or if the company has decided to encourage or require alternative work arrangements abroad, such arrangements may trigger additional immigration compliance requirements for employees at those international sites who are working on visas. Employers should contact immigration counsel for situation‑specific guidance.
If you have any questions concerning immigration compliance at your workplace during the COVID-19 outbreak, please contact one of our attorneys.