Protecting Foreign National Employees In The COVID-19 Era

As CEO, your task of balancing immigration compliance and emerging public health considerations will be challenging—but not impossible.

In just a few weeks, COVID-19 has swept across the United States. All 50 states report cases, and the infection numbers are steeply rising. The Occupational Safety and Health Administration (OSHA) and Centers for Disease Control and Prevention (CDC) have called on employers to adopt workplace measures to help slow the spread of the virus. Businesses across the country have responded by scaling back operations, limiting travel, authorizing telework, and offering generous sick leave policies.

Companies that employ foreign workers will find challenges in adapting to life with the coronavirus. Travel bans, shelter-in-place orders, or simply following the new normal of social distancing all can conflict with the often inflexible rules governing foreign workers— and yet companies that sponsor foreign nationals for U.S. employment will be expected to maintain their compliance under the current regulatory framework, regardless of what conflicts could arise from external circumstances.

As CEO, your task of balancing immigration compliance and emerging public health considerations will be challenging, but not impossible, and preparedness will be the best approach.

Here are six steps that you can take to protect both your non-citizen employees and the public health while the world weathers the coronavirus crisis.

1. Urge workers to stay put. Advise non-citizen workers that if they leave the U.S. now, it could be weeks if not months before they’re able to return. If at all possible, foreign workers should remain in the U.S. at least until immigration and travel authorities lift the current suspensions, resuming in-person immigration services and international flights respectively. At present, any non-citizen employee who has left or must leave the U.S. will face numerous obstacles to their return, some of which may be insurmountable for the time being. Current and future travel restrictions could leave these employees stranded, which may, in turn, threaten their nonimmigrant worker status.

2. Assist with temporary accommodations. Employees who are stuck outside the U.S., especially those who can’t return to their home countries, will need somewhere to stay wherever they’ve been grounded. Employees who have or could have been exposed to the virus, including anyone who crosses through a travel-ban affected country, will be expected to self-quarantine for a minimum of two weeks and will need to find a safe place to do so. There should be an open line of communication between companies and their stranded employees to facilitate adaptive planning under inevitably chaotic conditions. Companies can work with these employees to identify alternative sources of shelter, where they can wait out and ideally work through these momentary setbacks.

3. Be patient. You—and the company as a whole—should accept the reality that employees who aren’t currently in the U.S. may not be able to return for a prolonged period. Some employees may be able to work remotely, assuming their role at the company allows it, but these transitions will take time and planning—even more so if workers don’t have access to an environment in which one can work. Typical workflows may slow to a stop for the workers who are subject to these difficulties, and employers should be prepared to wait out the consequent disruptions.

4. Focus on compliance. Immigration compliance is complex and multi-faceted. The coronavirus pandemic could cause nonimmigrant workers to fall out of status, lose their employment authorization, violate the terms of their employment eligibility, or otherwise run afoul the complex and inflexible system that governs U.S. immigration. We don’t know how flexible immigration authorities will be, but we do know that the rules themselves are unforgiving.

As CEO, you will be responsible for ensuring that your company maintains the high level of compliance that this system demands, regardless of what mitigating circumstances exist or may arise. It will be important to work closely with your global mobility team and immigration counsel to best ensure that all your compliance bases are covered.

1. Pay attention to remote work. The CDC and OSHA have released public health advisories urging employers to authorize telework, whenever feasible, as a form of social distancing. Foreign workers can, and if possible should, make this transition, but not without attention to their underlying immigration status. H-1B workers may generally work remotely if their home is within 50 miles of their reported worksite, but remote work arrangements outside this range will need to be vetted with immigration counsel. Other visa categories come with their own requirements which will need to be individually analyzed and considered.

2. Plan ahead. You already know that preparation is key to guiding the organization, even if plans take a turn due to external forces. This situation is no different. Prepare, as much as current conditions allow, for complications that could arise out of operational changes and service suspensions, especially as they concern travel and immigration. Stateside foreign workers with upcoming green card interviews or soon-to-be expiring statuses are already seeing the effects of the USCIS office closures, as all in-person interviews have been postponed and processing times for all cases are increasing. U.S. consulates abroad have also suspended visa services, making it impossible for workers to renew visas even where the underlying visa paperwork has been approved. Ensure that your global mobility group and outside immigration counsel stay ahead of the curve by establishing a plan for how to accommodate these disruptions. Early, adaptive planning will make all the difference in keeping these critical employees working.

We are indeed in a unique period, and new immigration issues are unfolding daily. Stay informed about how your workforce will be impacted, and take the right measures to support them in a time of uncertainty.

Leslie Ditrani
Leslie Ditrani is Co-Managing Partner of Chin & Curtis, LLP and has been practicing immigration law for more than 25 years. Working closely with employers to hire and retain talent, she and the firm represent a wide range of enterprises from start-ups and entrepreneurs to large, multi-national businesses. Leslie is known for her broad expertise in business and family immigration matters, and her dedication to finding creative and effective solutions.