Resource for HR: Lawyer helps human resources pros navigate immigration issues arising from pandemic, Trump crackdown

By Brett Johnson
Moorestown | Jul 27, 2020 at 11:55 am
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Manuela Morais helps companies employ professionals who come from outside the U.S. And, during the global pandemic, there’s a lot of help wanted.

That’s because there’s one locale where corporate human resources departments are often finding themselves these days: a legal quagmire.

Morais, who runs a Moorestown-based law firm, has been working hand-in-hand with human resources professionals who want to stay at a distance from civil consequences, such as fines or back wages, that may result from the pandemic’s immigration-related compliance issues.

Not only are there new compliance issues for companies employing foreign nationals to be aware of, but Morais expects compliance enforcement by the federal government will increase greatly — compounding the already-increased enforcement under President Donald Trump.

All companies have their human resources team go through the Form I-9 process for new hires. That process, managed by U.S. Citizenship and Immigration Services, verifies an employee’s identity and their authorization to work in the country, and can be subjected to audits.

“And those audits are on the rise under this administration,” Morais said. “In the past two years, they’ve gone up by around 400%.”

Morais has spent many years assisting multinational Fortune 500 companies when issues arise from these processes. She also helps those companies’ workers secure visas and work permits, which are no longer being issued after an executive order signed by Trump last month.

For companies with workers who have already secured those visas, they’ve needed counseling on how the various permits interact with furloughs, remote working and other pandemic-instigated situations. As an example, a worker with an H-1B visa — a non-immigrant visa that allows companies to employ educated workers from other countries — can’t be furloughed without pay.

As another example of the issues that have come up during the pandemic, employers with workers with H-1B visas have to follow prevailing wage rules that could be affected by remote working.

“If workers are working remotely in another area, employers may be required to pay a different prevailing wage,” Morais explained, adding that “if an employer gets audited and there’s a difference in prevailing wages with the place that person has been working, that employer could be subjected to back pay based on the difference.”

What Morais is often finding is that human resources departments of companies aren’t aware of the need to alert immigration or labor authorities of such changes in work situations, when, technically, they already should’ve.

Morais said there’s a lot of confusion — companies sometimes aren’t even sure if a worker traveling abroad might mean they’ll be unable to reenter the country due to travel restrictions.

“A lot of this does impact a company’s ability to properly plan,” she said. “And it’s leaving a lot of companies scrambling to figure out what to do from a business perspective.”

Common situations

Amid the highly specific legal issues corporate immigration attorney Manuela Morais deals with, there’s a general takeaway: Things are changing for employees during the pandemic, and often in ways that impact a foreign national’s work status.

Morais outlined what those impacts may be — and what employers have to do about it — as a result of some common employment decisions being made today.

Remote working: “For some non-immigrant workers, such as L-1 or TN workers, their non-immigrant status is not tied to a specific worksite. For H-1B or E-3 visa holders, however, that is not the case. If the H-1B worker’s job location is outside the area of intended employment, also known as the Metropolitan Statistical Area, a new Labor Certification and H-1B Petition must be filed to evidence the change in work location. If the H-1B worker works from home within the same area of intended employment, then a new petition need not be filed, but the employer must still comply with additional regulations.”

Layoffs: “An employer is allowed to lay off any employee, as long as the termination is in compliance with relevant state and federal law. As many foreign nationals have status only pursuant to their employment, certain visa classifications are eligible for an up-to-60-day grace period to find new employment and/or change status. Failure to do so means the worker must depart the U.S.”

Furloughs: “If an employer is temporarily furloughing an L-1 visa holder, an amendment should be filed to notify U.S. Citizenship and Immigration Services of the temporary change in employment. It needs to clearly indicate that the furlough is temporary, and that the company intends to continue employing the non-immigrant worker as soon as possible after normal business operations resume following the COVID-19 pandemic.”

Cutbacks: “To ensure compliance, any reduction in salary and hours (below full time) requires a petition to be amended. Amendments should be filed as soon as practical to ensure compliance with federal regulations.”

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