Silver linings: Agencies making common-sense exceptions to certain immigration rules

Lynn O'Brien
Lynn O'Brien 24 Mar, 2020

COVID-19 is slowing immigration processing, with U.S. consulates suspending routine visa services abroad and U.S. Citizenship and Immigration Services (USCIS) temporarily suspending premium processing and in-person services during the national emergency.

Nevertheless, companies that sponsor H-1B, labor certification and other immigration procedures for employees in the U.S. will be able to keep several processes moving and remain in compliance, thanks to new measures introduced by the Department of Homeland Security and the Labor Department.

Relaxed signature requirements

Employers who are enforcing social distancing in the workplace by mandating work-from-home policies are now permitted to file copies of signed USCIS forms during the national emergency. Although the original petition must still be printed and signed with a handwritten “wet” signature and retained, employers will be able to scan or copy (or use a scanner app on a mobile phone) the original signed petition containing the wet signature for submission to USCIS.

Relaxed I-9 verification procedures

Form I-9 verification procedures will also be temporarily eased for certain employers who have implemented telecommuting because of COVID-19. Usually, employers must inspect an employee’s documents in the employee’s physical presence. During the crisis, employers may inspect identity and employment authorization documents remotely via video, fax or email. DHS is allowing remote inspection for employers operating remotely. Notably, however, if any employees are physically present at a work location, the employer must follow normal in-person procedures. Employers who are eligible for the virtual inspection option should strictly adhere to procedures set out in the guidance to ensure that they are in full compliance during the National Emergency and after normal operations resume.

Longer deadlines

The agencies have also automatically extended several deadlines for immigration-related procedures. Employers will have more time to respond to a Notice of Inspection (NOI) issued by DHS. Companies who have not yet responded to an NOI that was issued this month are automatically allowed a 60-day extension from the effective date. At the end of the extension, DHS will decide whether to extend further. Employers now have until May 12, 2020 to respond to certain inquiries by the Labor Department’s Office of Foreign Labor Certification, such as a request for information, notice of deficiency, or notice of audit, if their original deadline to respond fell between March 13, 2020 and May 12, 2020.

Employers will also have more flexible deadlines for completing labor certification application (PERM) recruitment and H-1B Labor Condition Application (LCA) posting requirements. DOL issued guidance giving employers an additional 60 days to complete PERM-related recruitment, provided that the employer started recruitment on or after Sept. 15, 2019, and the PERM application is filed by May 12, 2020. This extension does not apply to employers who already completed recruitment within the normal deadline. Additionally, employers who started recruitment on or after Sept. 15, 2019 have an additional 60 days to post the PERM notice of filing.

Employers may be moving H-1B employees to new locations, such as work-from-home arrangements, because of COVID-19. Normally, the LCA must be posted on or within 30 days before the day the H-1B worker begins working at the new work location, but under temporary measures, employers have up to 30 days after the worker begins work at the new location to post the LCA.

These temporary measures, though modest, are a promising development in that they allow companies flexibility in meeting the competing obligations of social distancing and immigration compliance. It is hoped that the agencies will consider implementing additional measures that would ease immigration processes and compliance during these extraordinary times.

BAL will continue to engage with policymakers and advocate for measures to help clients mitigate delays and protect the health of their employees.

Lynn O’Brien is a Senior Associate in the Northern Virginia office of Berry Appleman & Leiden LLP.

The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.