Coronavirus raises a host of difficult immigration issues for U.S. businesses, including the status of H-1B visa holders and international students, obtaining I-9 verification for new employees and travel restrictions that limit mobility for international personnel.
Below is a look at important immigration issues facing businesses during the current health crisis.
H-1B and L-1 Visa Holders: H-1B denial rates have reached historic highs during the Trump administration, according to a National Foundation for American Policy analysis. That raises crucial immigration issues if an H-1B petition is denied, particularly for an existing H-1B employee.
“Employees are in a jam. Many employers now prohibit domestic and international travel, and the U.S. government itself is discouraging travel to certain countries,” said Lynden Melmed, a partner at Berry Appleman & Leiden (BAL) and former chief counsel for USCIS, in an interview. “But the employees violate immigration laws if they stay put after an H-1B petition is denied. U.S. Citizenship and Immigration Services (USCIS) could fix this by instructing officers not to deny cases for workers in the U.S. unless there are serious violations of law. USCIS could also make it easier for companies to reapply without forcing the employee to leave the United States.”
BAL has recommended, if an employee becomes out of status, to consider refiling the H-1B petition and asking USCIS to excuse the failure to maintain status based on COVID-19 preventing the employee from departing the country. BAL notes, “A request will be stronger if the company can document that the employee would have been required to travel to a country where COVID-19 is widespread or if the individual or family members are at a greater health risk.”
One positive development for companies: BAL has confirmed with USCIS that the agency does not plan to conduct site visits at company office locations that have closed due to coronavirus.
Some employers may be uncertain how switching to remote work may affect the status of an H-1B or L-1 visa holder. “For an H-1B employee, an amended petition or LCA [labor condition application] should not be required as long as the employee is working in the same capacity and within typical commuting distance of the work location on the original petition and LCA,” according to William Stock of Klasko Immigration Law Partners. “For L-1s, as long as they are temporarily working from home, in virtually the same capacity, an amended petition is not required.” L-1 visa holders denied an extension face similar dilemmas about leaving the United States as H-1B visa holders.