Temporary measures announced for immigration-related filings

The Department of Homeland Security and Department of Labor are introducing temporary measures for companies filing immigration-related petitions, applications and documents in light of the COVID-19 National Emergency.

Key points:

• Form I-9 procedures. Employers that are operating remotely and requiring workers to telecommute because of COVID-19 may be eligible to conduct I-9 employment eligibility procedures remotely, rather than in person, according to a DHS announcement today. Employers must provide written documentation of all remote onboarding requirements and a telework policy for each employee, and follow additional procedures, including completing in-person verification once normal operations resume.
• USCIS to accept copies of forms. USCIS announced today that it will accept copies (scanned, faxed, photocopied, or similarly reproduced) of all petitions, including the Form I-129, starting with submissions dated March 21, 2020, in light of the National Emergency. The copy must be of an original document containing an original handwritten signature, unless otherwise specified. Individuals or entities that submit documents bearing a reproduced original signature must retain copies of the original documents containing the “wet” signature. USCIS may, at any time, request the original documents, which if not produced, could negatively impact the adjudication of the immigration benefit.
• Labor Department measures. The department’s Office of Foreign Labor Certification (OFLC) issued several temporary measures today.
  • Deadlines. The OFLC guidance stated that the agency will allow extensions for employers to respond to requests for information and documentation. If the deadline falls on March 13, 2020 through May 12, 2020, the employer’s response will be considered timely if received by May 12, 2020.
  • Recruitment. Employers sponsoring employees for PERM labor certification are required to begin recruitment within 180 days before filing for PERM and to complete recruitment at least 30 days before filing. Under temporary measures, the OFLC will accept recruitment completed within 60 days after the regulatory deadlines have passed to give employers enough time, provided the employer initiated recruitment within the 180 days before the president declared the National Emergency on March 13, 2020, i.e., on or after Sept. 15, 2019. Employers who have already completed recruitment during the required 180-day period should continue to file their PERM applications under normal requirements.
  • LCA posting. If employers need to move an H-1B worker to a worksite location that was not intended at the time they submitted the Labor Condition Application (LCA), and the new worksite is within the same area of intended employment, the employer does not need to file a new LCA unless other material changes have occurred. Normally, notice of the LCA must be posted on or before the day the H-1B worker begins work at the new worksite location. Under temporary measures, the DOL guidance states that the notice will be considered timely when placed as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite locations.
  • PERM posting. Under temporary measures, employers may post the Notice of Filing for PERM applications within 60 days after the deadlines have passed, provided that the employer initiated recruitment within the 180 days before the emergency declaration of March 13, 2020.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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