U.S. Department of Labor (DOL) regulations contain notice requirements for both the H-1B and the PERM programs. Because the notice requirements are intended to alert U.S. workers of the filing and provide an opportunity to file complaints with the DOL, the closure of workplaces raises numerous questions about how to fulfill these requirements during a partial or total quarantine associated with the outbreak of COVID-19 (the coronavirus) in the U.S. In addition, DOL regulations tie H-1B and PERM benefits to employment at a specific worksite.
This creates a significant challenge for business owners, managers and human resources personnel who are already dealing with significant fallout from the virus. Moreover, since telecommuting and remote work have become the norm for a wide range of businesses in affected areas, many employers may have no one on site to post these notices.
H-1B Labor Condition Applications (LCA)
H-1B employers are required to notify U.S. workers with a notice containing information about the job that is offered to the H-1B employee. This is most often done by posting a physical notice at the employee’s worksite. If the worksite is closed due to COVID-19, the notice would not be visible to U.S. employees and would not meet DOL requirements. Employers who have closed work sites due to COVID-19 can post the notice on their intranet, email the notice to U.S. workers, or post the information in a company newsletter.
H-1B Employees and Working From Home
H-1B employees who need to work from home during the COVID-19 outbreak are allowed to do so. Employers may meet the posting requirement by having the employee post the physical notice inside the employee’s home. Note that telecommuting requires filing a new LCA and perhaps an Amended H-1B petition in certain circumstances.
Green Card Sponsorship Notice of Filing Requirements for PERM
Employers who sponsor foreign workers for a permanent resident card or “green card” through the PERM process are in a tougher situation. The DOL requirements are very specific that a Notice of Filing must be posted at the employee’s primary work site for 10 working days. The best and most conservative approach for most employers is simply to wait until the office can reopen. If waiting is not an option, work with your immigration attorney to consider alternative options such as posting in the employee’s home or sending electronic notices. Those methods have not been pre-approved by the Department of Labor, however, alternative posting guidance has been requested.
The Supreme Court allowed a new federal rule to take effect on February 24. The rule requires that foreign nationals demonstrate self-sufficiency and will not become a “public charge” or drain on U.S. resources. The new rule views most forms of public assistance as evidence that someone is not fully self-sufficient; therefore, a foreign worker who applies for or receives public assistance may jeopardize a green card application.
COVID-19 and Public Charge Rules
The COVID-19 outbreak in the U.S. began just as the new rule on Public Charge Inadmissibility came into effect. The new rule has not been in effect long enough to have a historical perspective on how individual cases are processed. The government has provided resources for understanding the new rule, but we are still unclear on how this rule will affect people who receive assistance in connection with COVID-19.
Emergency Health Treatments
On March 13, USCIS issued a clarifying statement that:
USCIS encourages all those, including aliens, with symptoms that resemble Coronavirus Disease 2019 (COVID-19) (fever, cough, shortness of breath) to seek necessary medical treatment or preventive services. Such treatment or preventive services will not negatively affect any alien as part of a future Public Charge analysis.
Any foreign worker who is concerned that emergency medical attention for COVID-19 symptoms would make them inadmissible pursuant to the Public Charge rule should prioritize their health and safety. USCIS has confirmed that this will not be used against them, even if they receive this medical attention at no personal charge.
Generally, the rule also excludes emergency medical assistance and disaster aid from the list of public benefits that would make a person inadmissible.
H-1B Workers and Other Temporary Workers
Beginning when the Public Charge rule came into effect on February 24, employers of H-1B workers and other temporary foreign workers must now sign a statement saying that the worker has never received or been means-tested to receive certain public benefits. Because the statement has to be signed by the employer, rather than the employee, a good trust relationship with the employee is needed. This is normally not an issue for high-earning, high-skilled employees who would never qualify for means-tested benefits in the first place. However, as the COVID-19 outbreak brings massive changes to our economy, we will continue to assess best practices to protect employers who seek to employ foreign workers.
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