As employers respond to workplace issues pertaining to COVID-19 (Coronavirus), it is important not to forget about foreign nationals working pursuant to temporary non-immigrant visas. Employers must avoid discriminatory policies and remember that there are additional rules and regulations that apply to employees on visas.

Here are a few things to keep in mind:

  • Working Remotely – If a foreign national on an H-1B visa starts working remotely, the remote location was not on the original H-1B visa, and the remote work will continue for more than 30 days, a Labor Condition Application (LCA) posting or a new LCA and an amended petition may be required.
  • Material Changes in Terms and Conditions of Employment – Generally, foreign nationals working on temporary visas are expected to be working in the geographic locations in their visa petitions. Whether USCIS should be notified about a change in location depends on the type of visa and whether the change would be considered a “material” change in the terms and conditions of employment.
  • Changes in Pay – Other “material” changes that might have to be reported could include changes in pay,e., as triggered by moving from full-time to part-time employment. This would be particularly significant for those in H-1B status. If H-1B workers are not being paid the salary in the LCA filed with their H-1B petitions, employers can be found liable and be obligated to provide back pay.
  • Out of Status – Individuals on nonimmigrant visas (including students on OPT or STEM OPT) can find themselves “out of status” if there is a company shutdown and they are not working and not being paid. If a foreign national is out of status, the individual must change to another status or leave the country. For personal reasons or due to the COVID-19 outbreak, it may not be feasible or safe for them to return to their home countries.
  • Students and Exchange Visitors – Students on F-1 visas can fall out of status if they are taking all “online” courses during a campus shutdown. DHS has reported that it is prepared to be flexible. The Department of State has indicated that it is prepared to be flexible with individuals working in J-1 status as exchange visitors who cannot leave the United States at the conclusion of their programs.
  • Form I-9 and E-Verify – All employers must decide how they will handle Form I-9 and E-Verify obligations during a company shutdown or when individuals are working remotely. Under USCIS and ICE policies, this may mean establishing a process and designating “agents” to review forms and fill in Section 2 of the Form I-9.
  • COVID-19 Travel Bans – For now, because foreign nationals from many countries are banned from entering the United States, employers may want to reconsider hiring approaches. The banned countries include China, Iran, and the 26 Schengen countries – 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. On March 13, 2020, President Donald Trump noted that other countries, such as the United Kingdom, may be added to this list and some countries already on the list may be removed.
  • Cancellation of Consular Operations – There have been recent reports and news of various U.S. Consulates closing and/or cancelling immigrant and nonimmigrant visa appointments, and that trend may well continue. Employers and employees should be mindful of the availability of visa services at consular locations, check consular websites frequently, and plan accordingly.

Jackson Lewis has a COVID-19 Task Force and we are ready to assist you in developing plans and strategies for your workplaces, including policies related to foreign national employees working on temporary visas.

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Photo of Forrest G. Read IV Forrest G. Read IV

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice…

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice focuses on assisting employers in obtaining employment-based nonimmigrant visas (e.g., H-1B, L, O, TN) for foreign national employees and work-related immigrant (green card) visas, including PERM Labor Certifications, and advising employers on compliance with U.S. immigration laws and regulations. He has broad experience in advising large, mid-size and small employers on their various immigration needs and developing strategies to help them navigate through complex immigration issues. He also has particular experience in counseling employers in the health care industry and addressing immigration-related issues that arise for their broad range of health care professional employees (including advising on and obtaining employment authorization for medical residents and fellows and obtaining J-1 visa waivers for foreign national physicians completing their medical training in the United States). His immigration practice also includes defending employers in connection with Department of Labor H-1B and H-2B investigations.

Mr. Read’s employment law experience includes representing management, particularly academic medical centers in the GME context, in a wide array of workplace disputes and litigation before federal and state courts and administrative agencies, including matters related to discrimination, retaliation, harassment, disability, family and medical leave, various wage and hour issues, contracts, and intentional torts. He advises academic medical centers on the interplay between applicable academic law and employment law and the ramifications of what are divergent legal requirements and standards. Mr. Read also provides counsel with respect to the legal impact of competency standards for residents and trainees in GME, including situations involving discipline, remediation, and dismissal. He provides advice and guidance in the peer review process, including provision of verification and assessment of training in response to third party inquiries.

As a member of the Firm’s Corporate Diversity Counseling group, Mr. Read also has experience in providing assessments and making recommendations to corporate and institutional clients with respect to diversity and inclusion policies and initiatives, conducting related internal investigations, and shaping, developing and enforcing effective policies and initiatives to ensure consistency with client values and in furtherance of business goals and objectives.