Dear Tocci & Lee Immigration Clients:

These are unprecedented times. Instead of inundating all of you with numerous emails on a daily, sometime hourly basis, we will continue to send you emails every few days with pertinent updates. We will provide a short synopsis and provide links for more detailed information. Further, we will also include employment related Federal (and Massachusetts law only) legal updates from our Employment and Litigation Partner, John Tocci.

1. At this time USCIS continues to accept and adjudicate all applications and petitions submitted to their Service Centers (Vermont, California Texas, Nebraska and various Lock Boxes). Further, the Premium Processing option remains open except for CAP subject H-1B petitions–see #4 below. USCIS has established a Covid-19 news update site for breaking announcements.
   https://www.uscis.gov/about-us/uscis-response-coronavirus-disease-2019-covid-19

   
   a. Please be aware that if USCIS reduces their manning and operations, that processing times may continue to get longer. We are hopeful that USCIS will make an announcement to liberalize regulations to accommodate the current crisis (e.g., auto extending I-94’s, EADs, etc.). We will of course notify you of any critical regulatory changes as they occur.

2. All local USCIS field offices that conduct I-485 interviews and Application Support Centers (ASC) that process biometrics appointments are currently closed until, at least, April 1st. All those with interview and biometrics appointments before April 1st–will be automatically rescheduled. https://www.uscis.gov/about-us/uscis-response-coronavirus-disease-2019-covid-19-click on first two bullets below the main announcement.
   
   
3. Travel outside the U.S. We strongly discourage non-immigrants, Lawful Permanent Residents and U.S. Citizens from travelling outside the U.S.–even where permitted–due to the potential of being voluntarily or involuntarily quarantined by the country you are entering or upon return to the U.S. Travel ban proclamations are rapidly being issued and modified. All current bans are reported on the U.S. CBP website. https://www.cbp.gov/

   
   b. U.S. – Canadian land border crossing have been closed, except for emergency/essential travel. However, air travel to and from U.S. and Canadian airports remain open.However, if travel is required please be aware of the possibility of being involuntarily quarantined. There is no official announcement – but this has been tweeted by both governments.

4. USCIS FY2021 H-1B CAP registration and lottery process continues to move forward at this time. However, USCIS announced that they will not offer 15-day Premium Processing services to CAP lottery winners during the initial filing period. They may gradually resume premium processing for certain types of CAP-subjects petitions later in the summer, subject to further USCIS announcements. Presently, they continue to accept premium processing request for non-CAP petitions. https://www.uscis.gov/news/alerts/uscis-announces-temporary-suspension-premium-processing-fy2021-cap-subject-petitions
   
   
5. As many of you are aware, allowing H-1B workers to permanently “telecommute” from home requires you to post the current applicable Labor Condition Application (LCA) at the employee’s home for 10 business days. Since we all hope that the current “telecommute” arrangement will be temporary (less than 30 days) no action is required at this time. Further,

   
   c. If the “telecommute from home” address is outside normal commuting distance of the primary office worksite (outside the MSA), a new LCA and an amended I-129 petition is also required.

   d. If it appears that most of your telecommuting arrangement will last longer than 30 days,and if USCIS and US DOL FLCA do not provide a liberalization of this requirement, we will provide a detailed email with LCA posting options and instructions.

6. It may be premature, but we are aware that many of our clients are making contingency plans for employee layoffs. We will provide detailed information on how best to effect an H-1B layoff and outline both the company’s and employee’s responsibilities – on a case by case basis and based on the specific facts at hand. Bottom line:

   
   e. The employer cannot materially change the conditions of employment (i.e., reduce hours, wages, daily duties, etc.) without filing an amended H-1B petition with USCIS.

   f. The laid off H-1B employee may have at most 60 days to: leave the U.S., amend their status to a new visa category or transfer their H-1B status to a new employer. Not all employees are necessarily eligible for the 60 day grace period.

   g. The last date of employment is the last day of work. Severance pay does not extend the last date of employment.

   h. The employer is responsible for offering and paying for the employee’s travel costs to return to their last foreign country of residence.

   Again, you may schedule a time with one of our attorneys if you want to discuss your contingency plan.

7. Last, attached is a memorandum from our Employment and Litigation Partner, John Tocci outlining the recently enacted Federal legislation Families First Coronavirus Response Act (FFCRA) plus a message from Massachusetts’s Division of Unemployment Assistance. Please make sure to comply with legal employment law related requirements in each of the states that you operate in as well. Employment Law Alert-Corona 031820.pdf

   
   
   

Best,
Tocci & Lee LLC