How to avoid immigration pitfalls in the age of hybrid and remote work

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Labor immigration laws haven’t changed in the last couple of years, but the situation around them has changed and that, according to management lawyers who spoke to HR Dive, is enough to give a headache. head to the most sophisticated employers.

From traffic jams in the immigration machine to the emergence of hybrid and remote working, these experts warn that there are a number of potential pitfalls that could lead to problems if not proactively addressed.

Where did your H-1B workers go?

Relocations can be initiated by an employer or an employee, Melissa Malone, partner at Ogletree Deakins, told HR Dive in an interview. But in an increasingly competitive job market, some employees, especially those with in-demand skills, are looking for relocations that allow them to work remotely.

Travel by teleworkers already ask their fair share of questions, but the issue is even more complex when an employee holds a coveted work visa, such as an H-1B visa. Malone said he has seen cases in which visa holders have moved during the pandemic without telling their employers first. When the truth comes out, those employers could suddenly find themselves having to work backwards to come into compliance, Malone said.

The problem is that when an employer wishes to apply for an H-1B visa, they must first complete an application for working conditions which must then be certified by the United States Department of Labor. The LCA requires the employer to certify that they will pay the visa holder “a wage that is not less than the wage paid to similarly qualified workers or, if higher, the prevailing wage for the position in the geographic area in which the H-1B worker will be working,” according to U.S. Citizenship and Immigration Services.

A change in an H-1B employee’s location of employment placing the employee in a metropolitan statistical area, outside of the employee’s intended area of ​​employment, would constitute a material change and would require the filing of an H petition. -1B modified or new to reflect the new location, attorneys Eileen Scofield and Kerri-Ann Griggs of Alston & Bird LLP told HR Dive in an email.

“As remote work becomes a more popular demand, employers should ensure they have a list of their foreign workers’ visa statuses, potential work locations, whether remote work will be permitted. , and evaluating if and when an amended petition [may] must be filed with [USCIS]“said Scofield and Griggs.

Malone also recommended that employers have a system in place to track where employees are working from, even if they have moved on a temporary basis. She added that employers may want to consider location both when filing an H-1B petition and throughout the visa holder’s tenure of employment.

Under the short-term investment optionemployers may have the ability to temporarily place an H-1B worker in a location not listed on the worker’s ACL, said Kathy Khol, partner at Fragomen, Del Rey, Bernsen & Loewy LLP, but they may be subject to obligations additional and limits to doing so.

“H-1B does not permit an employee to be substantially homeless unless the employer is willing to file H-1B changes,” Khol added.

Remuneration, qualifications conundrums

Similarly, the movement of H-1B visa holders can also raise important compensation issues. Going salary levels vary by location, Scofield and Griggs said; if a tech employee on an H1-B moves from Georgia to California, for example, the worker’s salary level would change.

Moving H-1B visa holders to places with different prevailing salary requirements could mean bigger payouts from employers.

And because the H-1B program requires employees to be paid whichever is higher between the salary paid to similarly qualified workers or the prevailing salary for the given area, that could mean larger payments from the employer. ’employer. This may still conflict with an employer’s established policies regarding salary increases.

“You can see where raising an H-1B worker’s pay just because they changed locations could be problematic,” Scofield and Griggs said. “This could trigger a claim of discrimination based on national original by a US worker who believes that the H-1B worker’s salary was increased solely because it was necessary to obtain a visa for the worker and that constitutes unfair treatment.”

Pay transparency laws, rising at the state level, may also be a factor to consider, Khol said. Where states like Colorado require employers to post salary ranges on their job postings, employers may need to consider prevailing salary components of the H-1B program when posting advertisements for U.S. applicants. , she noted.

Similarly, an employer’s decision to drop certain qualification requirements for U.S. applicants, such as a college degree, for a job that the employer is also considering filling with an H-1B visa holder, could cause problems. additional. “If a bachelor’s degree is no longer required [for a given role]it could create possible scrutiny of H-1B petitions,” said Khol, who noted that some employers in the tech industry have encountered this problem when looking to expand their talent pools.

Document Questions

The decision by U.S. Immigration and Customs Enforcement to introduce virtual review of Form I-9 documents, a policy extended through Oct. 31, was initially a pandemic-related security measure. The agency plans to make the virtual exam a permanent feature; his proposal is currently under consideration at the White House.

For now, employers using the virtual I-9 exam are still required to obtain and inspect copies of Section 2 documents within three business days, retaining them thereafter, Scofield said. and Griggs.

Additionally, within three business days of “resumption of normal operations” or the end of ICE’s policy, all employees who have been onboarded using virtual verification must report in person to their employer for verification of identity and employment eligibility documents, Scofield and Griggs continued.

Alternatively, employers can use an authorized representative to act on their behalf to complete Section 2 of an employee’s Form I-9; “For a variety of reasons, the authorized representative is or may be a better option than the virtual exam under the temporary flexible policy,” Scofield and Griggs said.

Delays, delays, delays

Against the backdrop of these issues, employers continue to grapple with immigration systems that have slowed at a breakneck pace in many countries.

“It’s tough out there,” Malone said. “Consulates have not returned to pre-pandemic productivity levels. We are still seeing backlogs, which means practically significant delays in the availability of appointments. »

The slowdown has already been cited by observers as a potential cause of decline in preliminary H-1B visa applications in 2021. Wait times also vary by country, with the earliest available appointments at consulates in China and India extending through July 2023, said Malone.

“For employers, this means it will be very difficult for their employees on H-1B visas and other visas, such as L-1, to be able to travel,” she continued. Malone said she advised and recommended that employers place employees in line for visa appointments as soon as possible if they need to travel in the near future.

Additionally, employers should be wary of errors such as inconsistencies in visa stamps. Malone said she’s seen instances where the date stamp, which should match the period of employment, displays an incorrect time frame, and said this type of error can prolong an already lengthy process.

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