COVID-19 Immigration FAQs (Part 2)

We remind you to visit Kerr Russell’s COVID-19 resource page, which includes immigration-related content, as well as other issues that may impact your business during this crisis.

Can I Reduce Pay for H-1B Employees?

A reduction in salary for an H-1B worker generally requires that an H-1B amendment be filed with USCIS, as it is considered a material change.  Material changes also include changes in work location, position, and reduction of work hours.

While the regulations do not specifically address whether H-1B amendments need to be filed even when an employer’s entire workforce has had a salary reduction, in 2003 USCIS provided some insight in response to a question posed by the American Immigration Lawyers Association (AILA). Specifically, AILA asked whether an amendment was needed when the individual’s salary was cut (as part of overall payroll reductions) to less than the amount listed on the H-1B filing, but was still above the prevailing wage, as set by the Department of Labor.  The Service indicated that the amendment filing was not necessary.  As long as the wage complied with DOL requirements, the reduction could be made. The wage change must be documented in the Public Access File.

Therefore, provided that salary cuts are UNIFORM across the workforce and the employer pays the higher of the new wage for ALL employees in the same position OR the prevailing wage, reductions can be made. Making this determination necessitates that the employer review the Labor Condition Application on file for the employee against the Department of Labor’s Wage Library for the position at issue.  If you require assistance, please contact Kerr Russell.

How Should I Complete the I-9, if Working Remotely?

In response to stay-at-home orders and in increase in remote work, the Department of Homeland Security (DHS) relaxed the physical presence requirements associated with Employment Eligibility Verification (Form I-9).

Employers with employees working remotely due to COVID-19, are able to inspect Section 2 documents remotely (e.g. video link, email).  The employer should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.  Once the documents have been physically inspected (within three business days after normal operations resume), the employer should add “documents physically examined” and the date of inspection to the Section 2 Additional Information field, or to Section 3.  DHS indicated that this guidance may be used through May 19, 2020, or within 3 business days after the termination of the national emergency, whichever is first.

My L-2/H4 EAD spouse is eligible to apply for unemployment benefits. Would my spouse applying for and receiving such benefits carry any negative implications in the future for our renewals or green cards?

An individual whom USCIS determines is likely to become a public charge can be ineligible for some immigration benefits. A public charge is broadly defined as someone who has received one or more public benefits, as identified in the regulations. In February 2020, USCIS implemented a new public charge rule, which applies to applicants for admission to the United States, individuals seeking to extend their nonimmigrant stay or change their nonimmigrant status, and those seeking permanent resident status (green cards).

The final rule changed the definitions for public charge and public benefits. It also changed the standard that the Department of Homeland Security (DHS) uses when determining whether an individual is likely to become a “public charge.”

Receipt of unemployment insurance is not a public benefit under the new public charge rule as it is not a means tested public benefit, but rather an earned benefit. Receipt of unemployment benefits would not impact an individual’s eligibility for status/EAD renewals or a green card. The rule provides a specific list of benefits to be considered for public charge analysis, and unemployment insurance is absent. For further details, please see the USCIS website.

Kate M. McCarroll has extensive experience in employment-related immigration law, including inbound/outbound immigration, Department of Labor/ Department of Homeland Security audits and I-9 compliance training. Kate has also handled matters involving asylum proceedings,family-based immigration, and criminal and inadmissibility issues.

Miroslava Orduño Rincón has extensive employment-related experience concerning U.S. non-immigrant and immigrant petitions for large international clients. She also processes outbound visitor and work visas, family-based petitions, and naturalization.

Robert S. Anderson counsels and represents clients in the full spectrum of immigration legal issues as applied to their workforce and staff, including all aspects of the international movement of personnel for local, national, and international companies.

Other posts to consider:

• COVID-19 Immigration FAQs (Part 1)
• Paid Leave Coverage Update
• COVID-19: Immigration Impact – Update (Part 2)