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Gunster's immigration law practice

Due to precautions being implemented by employers for employees related to physical proximity associated with the Coronavirus Disease 2019 (“COVID-19”), the U.S. Department of Labor (“DOL”) has provided guidance for employers relating to its role in certain immigration process. DOL has also answered questions posed by the Liaison Committee of the American Immigration Lawyers Association (“AILA”) relating to changes in work conditions impacting H-1B workers during the COVID-19 outbreak as well as regarding interacting with DOL in Light of COVID-19.

Below please find a summary of DOL’s guidance and its recent communications with AILA. AILA’s guidance is available to members on its website. Bulletins summarized herein were posted on March 11, 17 and 26th, 2020. As each case differs on its facts, and the guidance continues to be updated, employers should discuss actions to be taken relating to this guidance with counsel prior to taking any action.

Changes in Work Conditions Impacting H-1B Workers During the COVID-19 Outbreak

DOL regulations require employers to continue to abide by the labor conditions to which they agreed when filing the H-1B petition. These are the terms set forth in the underlying ETA Form 9035, Labor Condition Application (“LCA”). More relevantly, these concern payment of the required wage, full-time vs. part-time status of the employee, and notice to employees in the area of intended employment. Please note that these requirements also apply to H-1B1 and E-3 nonimmigrants as well.

Employers’ obligations relating to continued payment to the H-1B worker of the required wage as set forth in the LCA when an employer decides to furlough or layoff, if the employee is afflicted with COVID-19, or otherwise render their employees unproductive during the COVID-19 crisis:

DOL regulations require employers to pay the wage set forth in the LCA. In response to the ongoing COVID-19 outbreak, many local and state governmental authorities are instituting shelter in place orders to prevent further spread of the COVID-19 virus. The impact of COVID-19 has prompted some employers to evaluate and assess their business operations. Employers are asking what happens should they decide to suspend, furlough, layoff, reduce hours, or otherwise render their employees unproductive during the crisis.

As and when these actions affect foreign national employees in H-1B classification, questions arise for counsel as to how employers would be able to place this class of worker in non-productive status while simultaneously maintaining compliance with the applicable DOL regulations requiring provision of the required wage irrespective of non-productive work status.

Non-productive status is defined as any time during the validity of the LCA and H-1B petition where an employee is unable to work. When an employee is in a non-productive status due to a decision of the employer (e.g., due to a lack of work), per 20 CFR 655.731(c)(7)(i) the employer continues to be obligated to pay the required wage. On the other hand, an employer is not required to pay the required wage to an employee in non-productive status, when the employee is non-productive at the employee’s voluntary request and convenience (e.g., touring the U.S. or caring for ill relative) or because they are unable to work (e.g., maternity leave or automobile accident which temporarily incapacitates the nonimmigrant) due to a reason which is not directly work related and required by the employer. Of course, per 20 CFR 655.731(c)(7)(ii), the employer would still have to pay the required wage if the employee’s non-productive period was subject to payment under the employer’s benefit plan or other statutes such as the Family and Medical Leave Act (29 U.S.C. 2601 et seq.) or the Americans with Disabilities Act (42 U.S.C. 12101 et seq.).

It is not permissible for an employer to furlough, bench, or otherwise render an H-1B employee non-productive and stop offering the required wage if the employee is not able to work from home during a COVID-19 pandemic initiated shelter in place order from federal, state, or municipal government authorities as the given conditions are not created by the employee. In this situation, an employer must continue to offer the required wage. Otherwise, an employer could be exposed to liability such as fines, back wage obligations, and in serious cases debarment from the DOL’s temporary and permanent immigration programs for a period of time. Per 20 CFR 655.810(d), debarment prohibits the United States Citizenship and Immigration Services (“USCIS”) from approving immigrant and non-immigrant petitions filed by the employer.

The regulations do not require an employer to pay the required wage if an employee is not able to work due to a reason which is not directly work related and required by the employer. That said, if an employer has policies in place where a COVID-19 positive employee would have to remain in quarantine, there is an argument to be made where the employer must continue to pay the employee given that the quarantine rule is created and imposed by the employer. An employer should also be aware that it could be subject to required payment under the employer’s benefit plan or other statutes such as the Family and Medical Leave Act (29 U.S.C. 2601 et seq.) or the Americans with Disabilities Act (42 U.S.C. 12101 et seq.) Employers should also be aware of any additional federal legislation passed regarding employers’ obligations during this national emergency.

Employer’s obligations when converting an H-1B employee from full-time to part-time status and LCA requirements in regard to notice when an employee starts to work from home:

An employer seeking to convert a full-time H-1B employee to part-time must file a new LCA to reflect this change. Once a new LCA is required, the employer is required to file an amended H-1B petition. The employee is permitted to commence part-time employment upon the receipt of the H-1B petition by USCIS.

AILA has requested that USCIS suspend or waive the requirement that employers must file an amended or new H-1B petition when a new LCA is required due to a change in the H-1B worker’s employment pursuant to Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015) if the change in workplace is in response to the COVID-19 outbreak. USCIS’ response remains pending.

If an employer’s H-1B employee is simply moving to a new job location within the same area of intended employment, a new LCA is not generally required. Therefore, provided there are no changes in the terms and conditions of employment that may affect the validity of the existing LCA, employers do not need to file a new LCA. Employers with an approved LCA may move workers to other worksite locations, which were unintended at the time of filing the LCA, without needing to file a new LCA, provided that the worksite locations are within the same area of intended employment covered by the approved LCA. Under 20 CFR 655.734(a)(2), the employer must provide either electronic or hard copy notice at those worksite locations meeting the content requirements at 20 CFR 655.734(a)(1) and for 10 calendar days total, unless direct notice is provided, such as an email notice. It is important to note that if the move includes a material change in the terms and conditions of employment, the employer may need to file an amended petition with USCIS. Notice is required to be provided on or before the date any worker on an H-1B, H-1B1, or E3 visa employed under the approved LCA begins work at the new worksite locations. Because the Office of Foreign Labor Certification (“OFLC”) acknowledges employers affected by the COVID-19 pandemic may experience various service disruptions, the notice will be considered timely when placed as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite locations. Employers with an approved LCA may also move H-1B workers to unintended worksite locations outside of the area(s) of intended employment on the LCA using the short-term placement provisions. The short-term placement provisions only apply to H-1B workers.

Employers required steps in order to terminate its obligation to pay the required wages:

Per DOL, payment of the required wage obligation need not be made if there has been a bona fide termination of the employment relationship. DHS regulations require the employer to notify USCIS that the employment relationship has been terminated so that the petition is canceled and requires the employer to provide the employee with payment for transportation home under certain circumstances. Additionally, an employer is responsible for paying for the return transportation cost of the employee if the employer terminates the employee prior to the end of the petition period.

Meeting Notice Requirements of the Labor Condition Application (LCA) for the H-1B, H-1B1, or E-3 program:

On or within 30 days before the date of an LCA filing, employers must provide notice of the LCA filing to its employees in the occupational classification in the area(s) of intended employment. Where a bargaining representative exists, the employer must provide notice of the LCA filing to the bargaining representative. In the absence of a bargaining representative, the employer may provide hard-copy or electronic notice to its employees which must be available to employees for a total of 10 calendar days. The hard-copy notice must be posted in two conspicuous locations at each worksite (or place of employment). During this pandemic, and in general, employers should also be aware that the regulations allow employers to provide electronic notice of an LCA filing. For electronic notice, employers may use any means ordinarily used to communicate with its employees about job vacancies or promotion opportunities, including its website, electronic newsletter, intranet, or email. If employees are provided individual direct notice, such as by email, notification is only required once and does not have to be provided for 10 calendar days. The notice must be readily available to the affected employees. The notice must also contain the required content and comply with the notice provisions of 20 CFR 655.734. The employer must document and retain evidence of the notice that it provided in its public access file in accordance with 20 CFR 655.760. Further, the employer must provide a copy of the certified LCA to the H-1B, H-1B1, or E-3 worker(s) no later than the date the nonimmigrant worker reports to work at the worksite location.

Interacting with DOL in Light of COVID-19

The DOL’s OFLC remains fully operational during the federal government’s maximum telework flexibilities operating status – including the National Processing Centers (NPCs), PERM System, and Foreign Labor Application Gateway (FLAG) System. OFLC continues to process and issue prevailing wage determinations and labor certifications that meet all statutory and regulatory requirements. If employers are unable to meet all statutory and regulatory requirements, OFLC will not grant labor certification for the application. The below information excerpted from OFLC issued frequently asked questions addresses impacts to OFLC operations and employers of both temporary and permanent visa programs.

OFLC will permit requests for extensions to deadlines and make other reasonable accommodations for employers and/or their authorized attorneys or agents impacted by the COVID-19 pandemic:

DOL’s OFLC will permit requests for extensions to deadlines or make other reasonable accommodations for employers and/or their authorized attorneys or agents impacted by the COVID-19 pandemic. OFLC recognizes that the COVID-19 pandemic may have a significant impact on businesses and understands that some employers and/or their authorized attorneys or agents may not be able to timely respond to requests for information and other correspondence regarding the processing of applications for prevailing wage determinations and labor certification (e.g., Requests for Information, Notices of Deficiency, Notices of Audit Examination). Accordingly, OFLC will grant extensions of time and deadlines for employers and/or their authorized attorneys or agents affected by the COVID-19 pandemic, including for delays caused by the COVID-19 pandemic and those that occurred as a result of businesses preparing to adjust their normal operations due to the COVID-19 pandemic.

Prevailing Wage, H-2A, H-2B, CW-1, and Permanent Programs: As set forth below, OFLC will make accommodations related to deadlines for employers and their authorized attorneys or agents to respond to the applicable OFLC NPC regarding the processing of applications for prevailing wage determinations and labor certification including requests for audit documentation, a response to a Notice of Deficiency, submissions of recruitment reports, business verification and sponsorship documentation, supervised recruitment, requests for reconsideration of a PWD, and any other request for information issued by OFLC containing due date deadlines. For COVID-19: If the specific deadline falls within the period from March 13, 2020 through May 12, 2020, the employer’s response or submission of information or documentation will be considered timely if received by the appropriate NPC no later than May 12, 2020.

Permanent Program – Filing Date Extensions: Employers are required to begin their recruitment efforts no more than 180 days before filing an Application for Permanent Labor Certification (Form ETA9089), and to complete most recruitment measures at least 30 days before filing. Due to service disruptions and other business operations temporarily affected by the COVID-19 pandemic, some employers may be prevented from completing these requirements within the 180-day time frame. Therefore, OFLC will accept recruitment completed within 60 days after the regulatory deadlines have passed to provide employers with sufficient time to complete the mandatory recruitment and file their PERM application; provided that the employer initiated its recruitment within the 180 days preceding the President’s emergency declaration on March 13, 2020. Important Note: Employers who have already completed the recruitment steps during the required 180-day timeframe should continue to file their application(s) under existing regulatory requirements. For COVID-19: Delayed recruitment conducted in conjunction with the filing of an application for permanent labor certification must have started on or after September 15, 2019, and the filing must occur by May 12, 2020.

Administrative Review or Appeals: Requests for extensions of time related to appeals of OFLC actions should be directed to the presiding administrative or judicial authority, including the Department’s Office of Administrative Law Judges (“OALJ”) for appeals of agency denials of labor certifications, debarments, revocations, or other agency actions related to the labor certification. For more information concerning OALJ operations, please visit www.oalj.dol.gov/.

Meeting Notice of Filing Requirements of the Permanent Employment Certification (Form ETA-9089) program and DOL Process for Issuance of Electronic PERMs in Response to COVID-19:

The Notice of Filing (“NOF”) under the Department’s regulations must be posted for at least 10 consecutive business days and completed at least 30 days before the date on which the employer submits the Form ETA-9089. While the NOF is not part of the required recruitment activities, it must be posted during the same period of time as the employer conducts its recruitment efforts; that is between 180 days and 30 days before filing the Form ETA9089. Accordingly, similar to the accommodations for recruitment activities due to the COVID-19 pandemic, OFLC will also accept NOFs posted within 60 days after the deadlines have passed in order to provide sufficient time for employers to file their applications, provided that the employer initiated its recruitment within the 180 days preceding the President’s emergency declaration on March 13, 2020.

DOL’s OFLC announced that beginning March 25, 2020, running through June 30, 2020, the Atlanta National Processing Center (“ANPC”) will be issuing PERM labor certification documents electronically in response to the COVID-19 global pandemic.

AILA’s DOL Liaison Committee has confirmed that OFLC is currently following a two-step process for each certification. Members should expect the following:

  1. OFLC will first send an email confirming that the ANPC analyst made a certification decision. That email will not contain the electronic copy of the certified PERM.
  2. After the first email is generated, the decision is moved into a certification queue internally at DOL, where another staff member then releases the email with the attachment.

For more information, please refer to:

Gunster’s Immigration Practice will continue to monitor the ever-evolving impact of COVID-19 on U.S. Immigration and provide you with the latest information and guidance as they become available.

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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.

About Gunster

Gunster, Florida’s law firm for business, provides full-service legal counsel to leading organizations and individuals from its 12 offices statewide. Established in 1925, the firm has expanded, diversified and evolved, but always with a singular focus: Florida and its clients’ stake in it. A magnet for business-savvy attorneys who embrace collaboration for the greatest advantage of clients, Gunster’s growth has not been at the expense of personalized service but because of it. The firm serves clients from its offices in Boca Raton, Fort Lauderdale, Jacksonville, Miami, Orlando, Palm Beach, Stuart, Tallahassee, Tampa, The Florida Keys, Vero Beach, and its headquarters in West Palm Beach. With nearly 200 attorneys and 200 committed support staff, Gunster is ranked among the National Law Journal’s list of the 500 largest law firms and has been recognized as one of the Top 100 Diverse Law Firms by Law360. More information about its practice areas, offices and insider’s view newsletters is available at www.gunster.com.

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