Returning to the Office
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What Employers Need to Know to Maintain Immigration Compliance
Danielle H. Gotcher, Managing Partner
As we begin to recover from the COVID crisis and companies start re-opening their offices, we want to provide employers with guidance and reminders related to certain immigration compliance requirements. This article will highlight the areas where employers are vulnerable to liability and where certain actions may be needed to maintain proper compliance.
LCA Posting Notices (H-1b Compliance):
During COVID, the DOL relaxed the posting notice requirement for postings at the worksite; however, upon re-opening the office, the DOL expects employers to resume displaying the LCA Posting Notices. This is especially important for employees who may have moved outside of commuting distance during COVID and who are now returning to work at the company’s offices.
In some circumstances, a new LCA may be required, and we recommend consulting with our office if you determine there are employees who may require this.
I-9 Verification and Re-Verification:
The employer is liable for any violations in connection with the I-9 form and the verification process, including re-verification processes and maintenance of the I-9 forms. During COVID, the DHS and ICE provided flexibility for completing I-9 forms, allowing employers to complete Sections 2 and 3 of the form relying upon scans or copies of identification and verification documents, rather than inspection of the physical documents. This remote inspection must be properly noted on the I-9 form with a note reflecting this process was used during COVID. (For samples of this completion and proper language, please contact our office).
This flexibility applies to both initial onboarding as well as re-verification, but the flexibility only applies to employees working remotely; there are no exceptions or flexibility for employees who have been physically present at the office. Further, this flexibility is temporary and currently only in effect until May 31, 2021. We will continue to monitor the guidance to determine whether the flexibility will be extended and when normal verification requirements resume.
In any event, when employees return to work at the office, employers will be required to update their I-9 forms for all employees who were onboarded (or required re-verification) during COVID. Within three (3) days of the employee returning to the office, the employer (or an authorized representative) must conduct a physical inspection of the original documents and properly note that inspection on the original I-9 form. The inspection must also confirm the original information on the I-9 Form and note the date the physical examination took place as well as the initials of the authorized representative who completed the physical inspection and updated the I-9 Form. (For samples of this completion and proper language, please contact our office).
I-94 Updates (I-9 Compliance):
Many employees relocated outside of the U.S. during COVID and continued to work remotely from abroad. When these foreign national employees return to the U.S., they will receive a new I-94 upon re-entry. Employers are required to update the I-9 Form with the current I-94 information within three (3) days of the employee’s return to the U.S. or return to work (if on a leave of absence). Employers will want to collect the updated I-94 documentation in order to properly update the I-9 Forms.
More importantly, because the I-94 controls the duration of the person’s legal status in the U.S., it is important for employers to cross check the I-94 expiration dates against the expiration dates for the existing visa (i.e., H-1b or TN expiration date). In some instances, the CBP will issue an I-94 with an expiration date that is earlier than the expiration date on the visa approval. Should this occur, action may be needed to extend the I-94 or correct the date in order to properly maintain the employee’s legal status and work authorization.
We recommend reaching out to your employees to determine whether they have travelled outside the U.S. during COVID. If they did, employers will want to request a copy of their new I-94 issued by CBP upon re-entry.
Worksite, Salary & Job Title Audit:
With most work visas, employers are required to maintain the terms of the employment for the duration of the employment relationship, including the stated salary and worksite location. Falling out of compliance can leave employers vulnerable to penalties and fines. During COVID, remote work may have changed various aspects of the employment, and it is critical that employers continue to comply with the terms of the various work visas. In many instances, employers have already filed amendments and/or new LCAs to account for required salary reductions or changes in employee worksite (as employees moved to work from home in places outside the commuting distance from the stated worksite).
As employees return to the office, now is a good time to ensure that your employees’ job titles, salaries, and worksites remain consistent with the statements made in their most recent applications with the USCIS. It is crucial that the foreign worker is paid the salary stated on the application sent to the USCIS and that they are working within a reasonable commuting distance from of the stated worksite. If their salary has been reduced and no longer meets the salary stated in the applications, please contact our office as an amended petition is required.
With most work visas, an amended petition is required if there are material changes to the terms of employment, and the amendment must be filed before the change occurs. If you find that your employee intends to move or if the company intends to transfer the person to a different location, please reach out before this occurs so that we can ensure compliance with the requirements of their visa.
Lastly, since you may have been away from your records at the offices, it is a good idea to audit your employees’ expiration dates on their current visas so you have an idea of what extensions may be needed for the remainder of 2021 and consider filing any amendments along with these extensions.