Immigration Law Update

April 2020

Are Your H-1B employees Working Remotely Or Having Their Hours Reduced?

If the terms, conditions, or locations of H-1B employees have changed due to the COVID-19 pandemic, the employer may need to take affirmative steps to remain in compliance with H-1B and LCA regulations.

H-1B employees working remotely from home. The H-1B employer must post new LCA notices at their homes. These postings need to be added to the public inspection files. If the home addresses are within normal commuting distances, most likely nothing needs to be filed with USCIS or the Department of Labor. Once the H-1B employees return to work, the postings notices must go up again at the H-1B employees’ job locations.
Reductions in hours represent material changes in employment and require filing of new LCAs and H-1B petitions.
Temporary layoffs (even for a few days or weeks) are problematic. H-1B employees cannot be “benched.” If there is no work during a temporary closure, H-1B workers must be paid full wages for unproductive time off.
Reductions in pay may or may not require new LCAs and H-1B petitions. If rates of pay remain above the prevailing or posted wages, no posting or filings may be required. However, if the rate of pay drops below the prevailing or posted wages, new LCAs and amended H-1B petitions will be required.

Canadian and Mexican Borders Closed to Non-Essential Travel

The United States, Canada, and Mexico have reached a joint agreement to close border crossings to non-essential travel to address the COVID-19 pandemic. Non-essential travel is considered travel for tourism or recreation. Essential travel remains permitted. This includes essential commerce and trade. Additionally, visa applications are still permitted at the U.S./Canadian border. If you have questions regarding travel to/from Canada or Mexico, please do not hesitate to contact Brad Ortman or Karen Moss.

USCIS & CBP Grant Flexibility for Visa Waiver Entrants Unable to Make Timely Departures

Individuals entering under the Visa Waiver Program are not eligible to extend or change their immigration status. However, under current regulations, USCIS and CBP have discretion to grant periods of satisfactory departures for up to 30 days with one additional 30-day extension. Affected individuals need to contact USCIS or CBP for this discretionary benefit.

H-1B Registration Lottery Has Been Completed

USCIS announced that it received approximately 275,000 registrations in this year’s H-1B registration lottery, and that it has notified all employers whose H-1B Cap registrations were selected. Under the new system, employers must prepare and submit petitions by June 30, 2020.

Under the regulations, if employers’ petitions are denied or the companies do not file petitions, USCIS will select additional registrants until the 85,000 annual cap is reached. Due to COVID-19 and the economy, some employers may decide not to file petitions making more H-1Bs available throughout the summer.

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If you have questions or would like to learn more about the items discussed above, please contact Karen Moss or Brad Ortman of the Immigration Law Group at Nicola, Gudbranson & Cooper via email or at (216) 621-7227.

Bradley L. Ortman and Karen Gabriel Moss
Nicola, Gudbranson & Cooper LLC

_{This Immigration Law Update contains general information that should not be considered legal advice or legal opinion concerning individual situations. Legal counsel should be consulted for specific advice.}