As if practicing immigration law under this administration wasn’t difficult enough, we are now facing the added unexpected chaos of a virus pandemic that will create new challenges for H-1B petitions, including meeting compliance rules, preparation of paper-heavy petitions, and getting them filed with the government on time. With the Seattle area being the epicenter of the COVID-19 outbreak in the U.S., we are thinking a lot about these potential issues, and have addressed them below. Here are some issues to think about immediately when it comes to H1Bs that are currently ongoing pre-registration and will need preparation and filing soon thereafter:
It is somewhat fortunate that the pre-registration process is on-going (the window opened on March 1st and will close March 20th) and we have already been able to file all the registration applications for all our clients. The brand-new system thrust upon us this year, as predicted, came with a lot of glitches. However, our dedicated team, with the cooperation of our amazing clients managed to get everything filed and we are now awaiting taking the next steps.
Labor Conditions Applications
In addition, we have also filed all our Labor Conditions Applications (LCAs)- which is the form used for the employer to ‘promise’ to pay the requisite salary to their potential employee. Our rational was that should 85,000+ people descend on the Department of Labor’s database all at once in the days following lottery notification on April 1st, we would be the fools using an overburdened system that would likely not work properly. As a result, fortunately, our clients have all posted their LCAs before their offices started to do remote work. Thank goodness, we say!
It is quite possible that some employers filed for registration themselves, or to minimize legal costs, have not yet filed their LCAs. But even if their offices temporarily close, those LCAs will still need to be posted. Immigration deadlines don’t wait for viruses! So, for anyone considering filing an H-1B petition this year (within 90 days starting April 1st), an alternative way to comply with posting rules could be the company intranet or similar electronic notification (see below). Each business will be different and we can chat about how that might be accomplished. As the rules are written, there are electronic options and it would be good to review those now so employers can prepare.
20 CFR 655.734(a)(1)(ii)(B)
(B) Electronic notice, by providing electronic notification to employees in the occupational classification (including both employees of the H-1B employer and employees of another person or entity which owns or operates the place of employment) for which H-1B nonimmigrants are sought, at each place of employment where any H-1B nonimmigrant will be employed. Such notification shall be given on or within 30 days before the date the labor condition application is filed, and shall be available to the affected employees for a total of 10 days, except that if employees are provided individual, direct notice (as by e-mail), notification only need be given once during the required time period. Notification shall be readily available to the affected employees. An employer may accomplish this by any means it ordinarily uses to communicate with its workers about job vacancies or promotion opportunities, including through its “home page” or “electronic bulletin board” to employees who have, as a practical matter, direct access to these resources; or through e-mail or an actively circulated electronic message such as the employer’s newsletter. Where affected employees at the place of employment are not on the “intranet” which provides direct access to the home page or other electronic site but do have computer access readily available, the employer may provide notice to such workers by direct electronic communication such as e-mail (i.e., a single, personal e-mail message to each such employee) or by arranging to have the notice appear for 10 days on an intranet which includes the affected employees (e.g., contractor arranges to have notice on customer’s intranet accessible to affected employees). Where employees lack practical computer access, a hard copy must be posted in accordance with paragraph (a)(1)(ii)(A) of this section, or the employer may provide employees individual copies of the notice.
Public Access Files
In our modern day lives, cloud storage is everything. From backing up photos, to saving documents, people are using cloud solutions in their personal as well as professional lives. It is quite likely that most businesses have cloud storage or some sort of electronic storage solutions for general business purposes.
All H-1B employers must maintain what’s called a ‘Public Access File’ (PAF). Traditionally, people have done this in paper format. But electronic maintenance is also acceptable. In 2017, the DOL confirmed with the American Immigration Lawyers Association (AILA) that PAFs may be maintained electronically, as long as they can still be provided for inspection within 1 business day.
With the virus potentially creating a long-term disruption in everyday business, employers should work on ensuring their electronic infrastructure is strengthened.
Preparation of the H-1B application
This year, the administration introduced a new process to file the Form I-129 and supporting documentation only if the application is selected in the pre-registration ‘lottery’. Some may opt to file the LCA after selection. The I-129 form was recently updated, which must be used in all H-1B applications to include public charge issues.
Many lawyers use electronic case management systems. Our office has been a customer of Inszoom for the duration of our practice. Such databases can be accessed remotely, so it shouldn’t be a problem completing forms remotely.
The strategic planning will occur around the preparation of the actual filing. USCIS will only accept original signatures on forms, so they will need to be physically sent to the lawyer to file with USCIS. But as COVID-19 protocols progress, and if Seattle becomes the next Italy with a required lockdown, this may pose a particular challenge.
Additionally, the motto in immigration filings seems to be ‘cut more trees’. In other words, you MUST file paper applications that are often 2-4 inches in size. These applications often need to be sent in duplicate so that embassies have access to the information as well. More trees, see?
There will be many unprecedented issues should Seattle need to institute stricter COVID-19 policies like the lockdown in Italy. If that happens, it will become next-to impossible to file these cases. For instance, how do clients get original signatures and checks to us? How do we copy/print and Fedex our petitions? How does Fedex operate, or will it operate at all?
Unprecedented times call for unprecedented measures. We will continue to keep our clients posted as things develop, of course. Businesses in general need to keep these things in mind as they grapple with so many other issues, such as remote work, payroll, and so much more.
My hope is that, should it become necessary, the Department of Homeland Security (DHS) issues guidance for extending the 90-day window in which H-1B applications must be filed. DHS will also need to consider extending cap-gap status for F-1 students waiting for H-1B adjudication. Businesses in turn will also need to plan for adjudications that go beyond October or even beyond January 2021.
In the meantime, lawyers and clients alike must do whatever possible plan and prepare, communicate closely, and ensure what is in our control is dealt with efficiently and possibly with creativity. For the rest, we will have to have faith that the administration will do the right thing at each stage as necessary.
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