Employers Must Consider Immigration Compliance When Responding to COVID-19

The spread of coronavirus (COVID-19) has presented unprecedented challenges for employers who hire foreign nationals. Employers must take special care to ensure compliance with immigration laws during this crisis.  Here a few of the most common scenarios, with recommendations on how to address them.

Working Remotely

Now that social distancing has become the norm, many employers are either allowing or requiring employees to work from home.  Remote working does not present a compliance issue for the following: a foreign national investor with an E visa, manager or executive with an L visa, Canadian/Mexican professionals with a TN visa or those with an extraordinary ability (O visa).

By contrast, H-1B, E-3 and H-1B1 visas are location-specific, requiring employers to identify the work location where the foreign national will be stationed.  An employee with one of these visas can, however, work remotely as long as all other working conditions remain the same and the employee is working within the normal commuting distance of the area of intended employment listed on the labor conditions application.

Employers must also be mindful of employees who are working full-time through optional practical training (OPT) granted in conjunction with a student visa.  Many students work under this status during their first year after graduation.  Immigration and Customs Enforcement (ICE) recently announced that it intends to be flexible with temporary changes to employment and encourages remote working.  ICE is not requiring prior approval for such changes, but the student’s academic institution must advise ICE within 10 days of making the change.  Employers should encourage these employees to coordinate closely with their academic institution.  The following chart summarizes the challenges and solutions to remote working for the categories discussed:

Unpaid Leave

Placing any foreign national employee on unpaid leave can carry significant implications for the employee’s immigration status.  In particular, an employer who hires an H-1B employee can be obligated to pay the wages identified in the labor conditions application, even after placing an employee on leave.  Whether an employer must continue to pay the wages in the labor conditions application depends on the reason for the leave of absence and who requests  it.

Employers should always contact immigration and employment counsel for an individualized assessment before deciding whether to place any foreign national employee on unpaid leave.

H-1B Lottery

The deadline to register for the next H-1B lottery is March 20, 2020.  This deadline has not changed due to the fact that registration is performed electronically.  Employers must therefore continue to work with immigration counsel to complete the registration process this week.