Work in the Time of COVID-19: FAQs for Employers

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I-9 Form Completion

The new Form I-9 is available and can be found at https://www.uscis.gov/i-9.  It must be the only edition used after 05/01/2020 or employers will risk being fined. Officials from the Department of Homeland Security (DHS), Immigration Customs and Enforcement (ICE), the Immigrant and Employee Rights Section (IER) at the Department of Justice (DOJ), and the Department of Labor (DOL) can still audit the I-9s through a Notice of Inspection despite the current work environment as a result of COVID-19.  Effective 03/20/2020, the DHS and ICE both announced flexibility in complying with I-9 requirements by employers and workplaces now operating remotely.

Specifically, employers with employees taking physical proximity precautions because of COVID-19 will not need to review the employee’s identity and employment authorization documents in the employee’s physical presence. That said, employers must still inspect the Section 2 documents remotely and obtain, inspect, and retain copies of the documents within three business days of hire to complete Section 2. The Additional Information field in Section 2 can be completed once physical inspection takes place after normal operations resume. Thus, once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field, or to Section 3 if appropriate. These provisions may be implemented by employers for a period of 60 days from the date of this notice or within 3 business days after the termination of the National Emergency, whichever comes first.  Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This obligation rests solely with the employer. Once normal operations resume, all employees who were onboarded using remote verification must report to their employer within 3 business days for in-person verification of identity and employment eligibility documentation for Form I-9.

E-Verify

Employers are still required to create cases for their new hires within 3 business days from the date of hire. Employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If case creation is delayed because of COVID-19 precautions, select “Other” from the drop-down list and enter “COVID-19” as the reason. As a result of Social Security Administration (SSA) closures, E-Verify is extending the time for an employee to respond to a Tentative Non-Confirmation (TNC). During that time period, an employer may not take any adverse action against an employee because the E-Verify case is in interim case status.

REAL ID

Passed by Congress in 2005, the REAL ID Act (Act) established minimum security standards for driver’s license issuance and production and prohibited federal agencies from accepting, for certain purposes, driver’s licenses and identification cards from states not meeting the Act’s minimum standards. The purposes covered by the Act are accessing federal facilities, entering nuclear power plants, and boarding federally regulated commercial aircraft. As a result of COVID-19, state driver’s licenses which would have had to satisfy upgraded standards by 10/01/2020, by the license holder getting a new license meeting those standards at the local Department of Motor Vehicles, now have an extension to do so by 10/01/2021. What will the REAL ID look like?  In most states, there will be a gold or black star on the front of the license in the upper right corner, except for Hawaii, Ohio and Utah which will issue REAL ID compliant driver’s licenses without a star.

Immigration and Customs Enforcement

As of 03/18/2020, ICE announced it is temporarily “adjust[ing] its enforcement posture… to focus on public safety risks and individuals subject to mandatory detention based on criminal grounds.” ICE has also suggested that it will not carry out enforcement operations at or near health care facilities “except in the most extraordinary of circumstances”.

Immigration and Naturalization Services

There is a suspension of all in-person United States Citizenship & Immigration Services (USCIS) appointments until 05/03/2020. These include all interviews, InfoPass appointments, naturalization ceremonies, asylum office hearings, and all Application Support Center (ASC) activities which include collecting fingerprints and biometrics.

Extension of Request for Evidence and Notice of Intents to Deny from the USCIS, if received between 03/01/2020 and 05/01/2020, now have an automatic 60-day extension in which to respond.

Two-week turn-around for so-called Premium Processing has been suspended for all I-129 nonimmigrant and I-140 employment-based immigrant (i.e., permanent resident) petitions. USCIS will return the additional $1,440 Premium Processing filing fee.

For COVID-19 impact on employer obligations to its H-1B visa workers, please refer to the firm’s recent FAQs: https://www.poynerspruill.com/thought-leadership/work-in-the-time-of-covid-19-faqs-for-employers/

Department of Labor Extensions for Prevailing Wage Determinations and Labor Certifications

DOL will extend the deadline to 05/12/2020 in which to respond to a number of requests it can issue in response to an employer’s Prevailing Wage Determination or Labor Certification filing. These include requests for audit documentation, a notice of deficiency, submissions of recruitment reports, business verification and sponsorship documentation, supervised recruitment requests, reconsideration of a prevailing wage determination, and any other request for information issued by the Office of Foreign Labor Certification of the DOL containing a due date.

Foreign Labor Certifications on Form ETA 9089 will only be issued electronically through 06/30/2020.

PPP Loans under CARES Act and H-2B Workers

H-2B seasonal workers cannot be calculated as part of payroll for Payroll Protection Program (PPP) loan purposes, but any payments through the loan program can be used to pay H-2B workers. There seems to be no such carveout at present disallowing other nonimmigrant visa holders being counted for payroll purposes.

Border Closures and Travel Restrictions

The Canadian-US border has been closed for an indefinite period as of 03/18/2020 for nonessential travel which includes tourism and recreation. This closure does not affect trade and workers who commute. The Mexican-US border was also closed as of 03/20/2020 to nonessential travel but will not affect trade or essential travel for work, medical or educational reasons.

Effective 03/13/2020, travelers from the Schengen countries may no longer travel to the US unless they are US citizens or permanent US residents, i.e., green card holders. The Schengen countries comprise Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

Effective 01/31/2020, the Trump administration moved to restrict the entry into the US of all foreign nationals who had been to China within the previous 14 days. The restriction does not include immediate family members of US citizens and permanent residents.

US Embassy and Consulate Closures

Routine immigrant and nonimmigrant visa services at all US Embassies and Consulates are canceled as of 03/20/2020. As resources allow, embassies and consulates will continue to provide emergency and mission critical visa services. Services for US citizens remain available. Specific information is available on each Embassy’s or Consulate’s website.

Of note is that interviews at US Consulates in Mexico for H-2A visas for temporary farmworkers have stopped, raising the possibility of impacting US food supply.

School Closure and Effect on Foreign Students

The Student and Exchange Visitor Program (SEVP) released guidance on 03/13/2020 that if a school must close temporarily with no online or other alternative learning procedures, the students “should remain in active status in SEVIS so long as the students intend to resume their course of study when classes resume.” If a school offers online instruction or another alternative upon closing temporarily, student visa holders should participate to remain in active status. Schools must notify SEVP of COVID-19-related procedural changes within 10 business days of instituting such changes.

 

 

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