President Trump's Latest Executive Order, “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market during the Economic Recovery Following the COVID-19 Outbreak”

This executive order suspends entry to the U.S. for a minimum 60 days to immigrant visa and adjustment of status applicants that are OUTSIDE the U.S. as of 11:59 pm Eastern Daylight Time on Thursday, April 23, 2020 if they do not possess an immigrant visa valid on 4/23/2020 or an official travel document such as a visa, advance parole, boarding foil or transportation letter that is valid on 4/23.

The suspension does NOT apply to the following individuals:

• Lawful Permanent Residents (LPRs), also known as green card holders;

• Spouses of U.S. citizens;

• Children of U.S. citizens under the age of 21 and prospective adoptee children seeking to enter on an IR-4 or IH-4 visa;

• Individuals and their spouses and children under 21 seeking to enter the U.S. on an immigrant visa as a healthcare worker (physician, nurse or other healthcare professional);

• Individuals and their spouses and children under 21 seeking to enter the U.S. on an immigrant visa to perform medical research or other research intended to combat the spread of COVID-19;

• Individuals and their spouses and children under 21 seeking to enter the U.S. on an immigrant visa to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak as determined by the Department of Homeland Security (DHS);

• Individuals applying for a visa to enter the U.S. pursuant to the EB-5 immigrant investor program;

• Members of the U.S. Armed Forces and their spouses and children;

• Individuals and their spouses and children eligible for certain EB-4 Special Immigrant Visas as an Afghan or Iraqi translator/interpreter or U.S. Government Employee (SIs or SQs);

• Applicants for asylum, refugee status, withholding of removal, or protection under the Convention Against Torture;

• Individuals whose entry would further U.S. law enforcement objectives as determined by Department of Homeland Security (DHS) and Department of State (DOS); and

• Individuals whose entry would be in the national interest, as determined by DHS.

The executive order expires 60 days from 4/23/2020 and may be extended as necessary.
 

Note, the order includes potentially troubling language that within 30 days of the effective date (4/23/20), the Dept. of Labor (DOL) and DHS, in consultation with DOS, shall review nonimmigrant programs and recommend to the President “other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”

For this reason, ImLaw recommends clients to file applications for nonimmigrant work visa and other temporary visa categories as soon as possible or practicable to avoid the impact of new policies, rules, or executive orders that may be issued after this 30-day review period.  We will continue to monitor the impact of this order and provide key updates.

H-1Bs Working Remotely From Home Due to COVID-19

If an H-1B employee is working from home, please notify the ImLaw team as soon as possible. If the H-1B's home address is within the same Metropolitan Statistical Area (MSA) or normal commuting distance from the work site listed in the certified LCA, a new LCA and amended H-1B petition is not required.  However, H-1B workers should post at the home address an appropriate LCA notice of filing (updated with the home address) for the required minimum of 10 consecutive calendar days, complete the posting date/location details on the notice of filing, and provide this document to the employer to place in its Public Access File.  Per DOL’s latest guidance, this should occur “as soon as practical and no later than 30 calendar days after the worker begins work at the new work site locations”.   

Note, this reposting requirement at the H-1B worker’s home address is required even though the worker’s home address is located within the same Metropolitan Statistical Area (MSA) or normal commuting distance from the work site listed in the LCA.  The ImLaw team is happy to provide guidance to employers for the specific scenario in question and advise on best practices for reposting and updating the LCA notice of filing.

Layoffs, Terminations, Hour and Pay Reductions Related to COVID-19 and Impact on H-1B Workers
 

When an H-1B employee is placed in a non-productive status due to a decision of the employer, DOL regulations require the employer to continue to pay the offered wage stated on the H-1B petition and underlying Labor Condition Application (LCA). DOL will apply strict liability for compensation to H-1B employers in this scenario. Moreover, H-1B employers are required to notify the government of any "material change" in the employment of an H-1B worker.  If full-time employment (35 hours or more) was indicated on the LCA and H-1B petition, lowering hours to less than 35 hours per week will require a new LCA and an amended petition to be filed.  If wages are reduced, a new LCA and amended petition is not required as long as the offered salary does not fall below the prevailing wage or actual wage paid to similar situated US workers, whichever is higher.  Note, these requirements also apply to H-1B1 and E-3 workers.
 
In contrast, when an H-1B employee becomes non-productive voluntarily at their own request or because they are unable to work for a reason that is not work-related or required by the employer, the employer is not obligated to pay the stated H-1B wage. However, the employer would still be required to pay the stated wage if the H-1B’s non-productive period was subject to payment under the employer's benefit plan or other statutes such as the FMLA or the ADA.

If an H-1B worker's employment is terminated, DOL regulations require the employer to notify USCIS, withdraw the LCA, and pay the H-1B's return transportation costs to the home country.

A non-compliant employer is exposed to liability such as civil penalties of up to $7,846 per violation, back wage obligations (LCA-stated wage), and in serious cases, debarment from DOL’s temporary and permanent immigration programs for a period of time.

Please contact ImLaw if you have questions or concerns related to your H-1B employees.

COVID-19 Impacts on Other Nonimmigrant Workers 

Generally, reductions in pay or hours do not require the filing of an amended petition with USCIS for L-1, E-1, E-2, O-1, or TN workers.  However, similar to H-1Bs, the "material change" requirement does apply to O-1 workers.  Thus if a reduction in the O-1's salary or hours could affect his/her underlying eligibility for the O-1 category, please contact the ImLaw team to carefully assess this issue. Unlike the H-1B category, the regulations do not mandate notification to the government in the event of layoff or termination.  In the event of a temporary layoff, employers should maintain evidence that an employer-employee relationship continues in the form of benefits being provided to the worker and that it intends to re-hire them as soon as it is able (productive work resumes). 
 

Keep in mind that if the employment of certain nonimmigrant workers (E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN) is terminated, they have the shorter of 60 consecutive days or the end of their original authorized validity period to remain in the United States.  During this period, they may apply for a change of status (e.g., apply to change to F-1 student status, B-2 visitor status, or a work visa status for which they are qualified through another employer).

F-1 students working on Optional Practical Training (OPT) can be unemployed for a maximum of 90 days in the aggregate, and STEM OPTs can be unemployed for an additional 60 days, for a total of 150 days of permitted unemployment during their entire post-completion OPT/STEM OPT period.  

Please contact ImLaw if you have questions or concerns related to your nonimmigrant workers.  We are committed to keeping you updated on the latest changes that affect your cases.