Workplace Issues Of Reopenings, Returning To Work

Jackson Lewis P.C.
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As businesses begin to reopen after shutdowns to help stop the spread of the COVID-19 pandemic, employers should anticipate heightened scrutiny by USCIS, ICE, and the Departments of Labor and Justice regarding wage and hour and immigration requirements.

The current surge in worksite enforcement is expected to result in as many as 10,000 I-9 audits in fiscal year 2020. In addition, civil audits are on the upswing, leading to criminal investigations and criminal arrests for employing undocumented workers. Moreover, high unemployment and mounting political tensions due to the COVID-19 pandemic likely will lead to even greater government focus on employers’ hiring practices.

Regardless of whether your company employs foreign nationals, all employers should audit their I-9s now. Basic steps include:

  • Determining if you need to do new I-9s for employees who have been furloughed or terminated.
  • Reviewing documents initially presented and update I-9s within three business days if your company reviewed I-9s remotely during the shutdown.
  • Checking if some returning workers need to have their I-9s reverified.
  • If your company is in the midst of an audit, readying for ICE to move quickly despite COVID-19 extensions.

Employers with non-immigrant workers have other concerns as well. It is a good time to:

  • Audit H-1B Public Access Files to ensure you have included proper notifications regarding worksite changes.
  • Check on any changes in salary to ensure you are still meeting prevailing wage and actual wage requirements.
  • Check if any amendments to petitions are required because of post-COVID-19 decisions regarding the terms and conditions of employment.
  • If any employees on H-1B visas are being terminated, make sure to follow regulations regarding withdrawing petitions and repatriation.
  • Prepare for possible worksite visits from USCIS.
  • Strategize on how to bring foreign nationals into the country or back into the country in light of travel and entry bans, as well as consular closings.
  • Review current green card sponsorship to determine whether cases are still viable given unemployment numbers in your industry.
  • Refine green card sponsorship policies and agreements in light of the new normal.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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