During the Trump administration, U.S. Citizenship and Immigration Services (USCIS) has radically increased its oversight of the H-1B visa, which many tech companies utilize to bring in workers from overseas. Last year, for example, the agency started asking companies about the type of work that H-1B visa recipients will be doing—including things that companies usually like to keep under wraps, including vendor agreements, lists of projects and subcontractors. Such requests for evidence (RFEs) have helped power a rising number of visa rejections, especially for consulting and business-services firms that have been long accused of abusing the H-1B visa system.
With COVID-19 sweeping the globe, millions of employees are now working from home for the foreseeable future. That’s a complicated situation for many companies, particularly tech firms that, up until a few weeks ago, relied heavily on in-person standups and closely-knit teams. It’s also an extremely confusing time for those companies that lean heavily on immigration in order to secure the talent they need. How will USCIS—and the rest of the federal government—adapt to this new paradigm? Will H-1B workers generally end up working remotely for the foreseeable future, and is that even legal?
As you might expect from a crisis that’s only a few weeks old, there’s still quite a bit of uncertainty.
In late March, a senior Department of Homeland Security (DHS) official had a call with the media to discuss a variety of issues related to the virus, including H-1Bs. This official went unnamed during the call, which was designated as “on background,” but the U.S. State Department issued a transcript afterwards with his name redacted. When asked whether H-1B holders forced to telecommute would have to submit additional paperwork—and possibly face additional challenges from USCIS—this official said:
“We are supporting, across the department, steps for safer working environments in light of the coronavirus, so I would be expecting to see that extended to the terms and conditions enforced with respect to H-1B visas. But having not dealt with that specific question before, I’d have to defer to USCIS on that. But again, it’s the same agency making those decisions as I – my previous question, and for those of you who don’t know, I was the [position] of USCIS before I took on the role of the acting deputy secretary for Homeland Security. So I’m very familiar with that work, and I think you can expect to have a very reasonable consideration from USCIS in all of these sort of circumstances that are only caused by the coronavirus.”
Meanwhile, other parts of the federal government are issuing guidance for how companies should handle their H-1B workers who abruptly find themselves working from a different location. For instance, the Department of Labor (DOL) has issued a FAQ guide for complying with Labor Condition Applications (LCAs) during COVID-19; in essence, if a worker’s tasks and workflow radically change, or if they work from home for longer than 30 days (which would surpass the parameters of the Short-Term Placement Rule), then the company may have to file an amended petition with USCIS.
Given the uncertainty and confusion of the moment, things will get even more complicated if tech firms begin laying off H-1B workers. According to Blind, which conducts anonymous surveys of technologists, roughly 57.1 percent of technologists fear layoffs due to COVID-19. Nor are workers at big companies immune; some 37.5 percent of Facebook staffers told Blind that they feared being cut, along with 46.3 percent of Amazon employees. While there’s a “grace period” for H-1B workers who have been laid off, travel and movement restrictions could make things extra-difficult in terms of their next move.
For more COVID-19 content, check out the COVID-19 Jobs Resource Center.