The Onboarding Blues: COVID-19, U.S. Immigration and the Onboarding Process for U.S. Law Firms

Historically, the onboarding process for first-year associates happened like clockwork. There was always  a bump or two in the road, such as when a new hire left his passport at home on the day when he was scheduled to complete the I-9 form, but typically these types of obstacles were overcome without much of an issue. This year, though, has been very different. COVID-19 has caused a ripple effect across all roads of life, and one intersection that has been significantly impacted has been the onboarding process for U.S. law firms with foreign national associates. Fear not, though, as there are solutions to guide you through the current times.

As an initial matter, COVID-19 has had a major impact on the administration of the bar exam. While some states, such as Utah and Washington, have confirmed they will grant emergency diploma privileges to certain law school graduates, allowing them to forego the bar exam and commence practicing law, other states, such as Michigan and Massachusetts, have adopted the online exam approach for the first time. For some states, like New York, incredibly enough, there is still no finalized plan, as the in-person test rescheduled for September 9-10 has recently been canceled. Accordingly, the New York State Board of Law Examiners has faced serious pressure, given the fluidity of the current pandemic, which has forced many states (including New York) to re-examine their plans. The uncertainty of COVID-19 has led to serious complications for all recent law school graduates, but maybe no group more so than students on F-1 student visas.

The F-1 visa (Academic Student) allows an individual to enter the U.S. as a full-time student at an accredited college or university. After the first academic year, F-1 students may engage in temporary employment that is directly related to an F-1 student’s major area of study, known as Optional Practical Training (“OPT”). Eligible students may participate in OPT through pre-completion OPT, which allows students to work part-time (20 hours per week) during the school-year, or post-completion OPT, which allows students to work either part-time or full-time in a position related to their degree following the completion of their studies.

The postponement of state bar exams has impacted many first-year associates’ law firm start dates, which historically have been in September after sitting for the bar exam over the summer.  Students with F-1 visas are allowed  90 days of unemployment during their OPT employment period, which begins on the initial validity date of the student’s Employment Authorization Document (“EAD”) card. A student that exceeds the allowable period of unemployment while on post-completion OPT is considered to have violated his or her F-1 visa status, which could result in serious immigration implications.

Given this fluid situation, some law firms are still finalizing their first-year associate start dates, and as a result, many employers have fielded questions from concerned F-1 students about maintaining a start date that occurs more than 90 days beyond their EAD start date. If you receive such a question, we recommend:

• Raising the inquiry to your Fragomen professional
• Advising the incoming associate to speak with their Designated School Official (“DSO”)

Even if the start date is more than 90 days beyond the incoming associate’s EAD start date, it does not signify doom, as there are alternative employment options for the F-1 student visa holder. So long as the incoming associate can find a position related to his or her field of study and is able to work more than 20 hours per week, this should enable him or her to properly maintain F-1 visa status and provide protection from accruing days of unemployment. For example, the incoming associate can explore an internship with a local legal clinic or connect with a law school professor regarding any available volunteer opportunities. Furthermore, the incoming associate can speak with various agencies to secure employment with another firm, even if temporary in nature, to bridge the gap until the start date with your firm.

Although COVID-19 continues to impact various U.S. immigration matters, by partnering with Fragomen and their DSO, there are solutions that first-year associates can pursue to preserve their ability to remain in the U.S. and commence their fall employment in a timely manner. The situation remains very dynamic, so please feel free to reach out to me at [email protected] or your Fragomen immigration professional for additional guidance.

This blog was released on July 21, 2020, and due to the circumstances, there are frequent changes. To keep up to date with all the latest updates on global immigration, please visit our  COVID-19 microsite,  subscribe to our alerts and follow us on  LinkedIn