Although federal agencies are rallying in some ways to help employers and others cope with the secondary effects of the COVID-19 pandemic, such as by temporarily easing or postponing certain immigration-related requirements, those requirements still apply. Enforcement remains a real risk while many employers and their employees grapple with unprecedented pressures and the need to make drastic adjustments on an emergency basis, such as requiring full-time remote work, closing offices, placing employees on furlough, and even conducting layoffs.
- An uptick in enforcement actions against U.S. employers suspected of abusing the H-1B program. This is in line with President Trump’s order to federal agencies to “ensure that H-1B visas are awarded to the most-skilled or highest-paid beneficiaries.”
- Pressure from local-hire advocates to suspend the H-1B program. With unemployment claims way up, some are arguing in favor of a pause on the H-1B visa program.
- Extension of notice requirements for new worksite locations. Notice is required to be provided on or before the date any worker on an H-1B, H-1B1, or E3 visa employed under an approved Labor Condition Application (LCA) begins work at a new worksite location. Because 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.
- Extension of deadlines and other reasonable accommodations for prevailing wage determinations and labor certifications. OFLC says it may grant extensions of time and deadlines for employers and/or their authorized attorneys or agents, including for COVID-19-related delays and those that occurred as a result of businesses preparing to adjust their normal operations due to the pandemic. 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 by May 12, 2020.
- Continued processing and issuance of prevailing wage determinations and labor certifications. OFLC warns, however, that if employers are unable to meet all statutory and regulatory requirements, the agency will not grant labor certification.
Tips for Employers
- Evaluate your company’s level of compliance with H-1B requirements and use of the program. What are the risks? What are the opportunities?
- Plan well ahead for onboarding. Premium processing was suspended on March 20, 2020, and U.S. Citizenship and Immigration Services has not indicated when it will resume. This means that expedited processing is unavailable, and delays are possible. Some flexibility remains, however, such as allowances for H-1B employees to “port” to new employers within 60 days, before final approval of the new situation.
- Bolster your human resources department’s level of awareness of H-1B and other immigration-related issues, and enlist staff in the effort to address any gaps in compliance and raise awareness company-wide.
- Review compliance with DOL Wage and Hour requirements and the effects of the local labor marketplace, such as ensuring payment of prevailing wages in sync with those paid to similarly situated workers.
- Follow current DOL rules on how to provide worksite notice to employees.
- Update contact information as needed to ensure receipt of correspondence related to applications. General questions related to the processing of applications, business verifications, and changes of contact information (mailing or email address, phone number) should be directed to the OFLC’s Atlanta National Processing Center using the following contact methods: email (Chicago@dol.gov; include the phrase “COVID-19” followed by the full case number in the subject line); phone (404-893-0101; give the full case number to the OFLC help desk staff).
- Stay alert and aware of rapidly evolving changes in light of the pandemic, and its current and potential effects on requirements and deadlines. Check reliable sources for updates frequently.
Circumstances are rapidly evolving. Contact your WR attorney for help and advice in specific situations.
- OFLC FAQ, https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%201_03.20.2020.pdf
- USCIS notice, “Buy American and Hire American: Putting American Workers First,” https://www.uscis.gov/legal-resources/buy-american-hire-american-putting-american-workers-first
- Executive Order, “Buy American and Hire American,” https://www.whitehouse.gov/presidential-actions/presidential-executive-order-buy-american-hire-american/
- Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites, https://bit.ly/2yD0PKf
- Economic Times, “U.S. Group Asks Donald Trump to Suspend H-1B Program,” https://bit.ly/2X8nmsx
- Economic Times, “Visa Freeze by U.S. Embassy Due to Coronavirus May Ground Indian IT Companies,” https://bit.ly/2RtJFFB