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COVID-19 & US Immigration

I hope you are well and staying healthy during the coronavirus outbreak.  We know that there is much worry and uncertainty for our clients during this time, especially for businesses with foreign national workers and cross-border employees. We’ve taken the time to address some of the most common concerns during this time, outlined below, as well as updates from government agencies. Please feel free to forward this to your other HR team members and company stakeholders as you see fit.

Updates from USCIS 

  • Premium processing suspended for all I-129 and I-140 petitions – USCIS announced that due to COVID-19’s impact on their operations and staffing levels, effective March 20, 2020, USCIS has indefinitely suspended premium processing for all I-129 and I-140 petitions. This includes fiscal year 2021 H-1B cap petitions. USCIS will notify the public when premium processing has been reinstated. 
  • All in-person appointments cancelled – USCIS has cancelled all in-person appointments between March 18, 2020 and May 3, 2020 at USCIS Application Support Centers and field offices. This means that all adjustment of status interviews, naturalization interviews, naturalization oath ceremonies, and biometrics appointments have been cancelled. It is possible that USCIS will extend the temporary closure of these offices for a longer period. Once normal operations have resumed, USCIS will send out new appointment notices. 
  • Relaxation of petition signature requirements – USCIS realized the difficulties surrounding original “wet ink” signatures in work-from-home environments, and beginning March 21, 2020, relaxed the original signature requirement for certain petitions. This means that USCIS will accept a copy or scanned version of an original “wet ink” signature. 
  • USCIS to continue to process EAD extension applications without biometrics – USCIS announced on March 30, 2020, that it will continue to process form I-765 extension applications by using previously submitted biometrics. 
  • Flexibility for Requests for Evidence and Notices of Intent to Deny – USCIS announced on March 27, 2020, that for applicants and petitioners who received or will receive an RFE or NOID dated between March 1 and May 1, 2020, will have an extra 60 days from the deadline listed in the notice. 

Updates from CBP

  • Non-essential travel suspended from Canada and Mexico – Travel at the U.S./Canada and U.S./Mexico land borders will be restricted to “essential travel” until at least April 20, 2020. To learn more about what is considered “essential travel” visit our blog here. It is important to note that L-1 and TN applications can still be presented at the U.S./Canada border at this time. 

Updates from DOS

  • Routine Consular services canceled – Beginning March 20, 2020, the U.S. Department of State announced that routine visa services at all U.S. embassies and consulates worldwide are suspended. This includes both nonimmigrant and immigrant visa matters. All upcoming interviews have been temporarily canceled until further notice. At this time, the Department of State is unable to provide a specific date and time for when routine visa services will once again be available. 
  • National Visa Center working with reduced staff – The National Visa Center, the entity that processes documentation related to immigrant visa cases, has reported that it is presently working with reduced staff numbers. We anticipate this will cause delays in the processing of immigrant visas. 

Updates from DOL 

  • PERM electronic approvals – Beginning March 25, 2020, and effective through June 30, 2020, the Atlanta National Processing Center (NPC) will issue certified Form ETA-9089 and Final Determination letters electronically to employers and attorneys in response to the COVID-19 pandemic. When filing the I-140 petition, USCIS will consider a printed version of Form ETA-9089, containing all signatures, as satisfying the requirement that petitioners provide evidence of an original labor certification issued by DOL. 
  • PERM recruitment and notice of filing requirements – The DOL has announced that it will accept recruitment completed within 60 days after the regulatory deadlines have passed to give employers enough time, provided the employer-initiated recruitment on or after September 15, 2019. If recruitment has already been completed during the required 180-day period, however, employers should continue to file PERM applications under normal requirements. 

Updates from ICE and USCIS 

  • I-9 compliance flexibility – On March 20, 2020, DHS announced interim guidelines to temporarily ease I-9 compliance for employers that are operating remotely. Under this guidance, employers that are operating remotely may complete Section 2 or Section 3 verification process remotely, which must usually be done in-person. To learn more about this, please visit our blog here.
  • E-Verify flexibility – DHS released new guidance to extend the timeframe for employers to resolve certain Tentative Non-Confirmations (TNCs). This guidance provides employees more time to resolve TNCs due to the closure of Social Security and other public offices. To learn more details on this, please visit our blog here.

International Travel Restrictions into the U.S.

The U.S. and countries around the world have adapted to the spreading coronavirus pandemic by imposing new travel restrictions.

Currently, President Trump has issued a proclamation limiting the travel of both nonimmigrants and immigrants from Europe (all Schengen countries, including the UK, Ireland and Italy), the People’s Republic of China, Italy and Iran into the U.S. Currently, any foreign national who has traveled to these countries within the preceding 14 days of entry will not be admitted into the U.S.; this restriction is in place for an indefinite period of time.

The travel restrictions do not apply to: U.S. citizens, Lawful Permanent Residents, or their spouses; parents or legal guardians of minor (under age 21) U.S. citizens/Permanent Residents; children of U.S. citizens or Permanent Residents; and other specific categories of individuals set forth in the Proclamation. These people will be channeled through one of 13 airports equipped to do special screening.

Travel between the U.S. & Canada

At this time, Canadian citizens are permitted to enter the U.S. from Canada. Normal screening processes apply.  As of this morning (March 17), CBP officers locally at the Peace Bridge, Buffalo are still processing L-1 and TN applications for Canadian citizens. Travel restrictions noted immediately above will still apply to Canadian citizens.

Further, however, note that Canada has imposed restrictions on entry of all people into Canada, including Canadian citizens. On March 16, Prime Minister Justin Trudeau announced that Canada was blocking the entry of anyone who is not a Canadian citizen or permanent resident, except for airplane crews, diplomats, immediate family members of Canadian citizens and “at this time,” United States citizens. Mr. Trudeau made the announcement during a press conference.  Beginning March 18, only four Canadian airports will continue to accept international flights, Mr. Trudeau said. The airports include Toronto Pearson International Airport, Montréal-Pierre Elliott Trudeau International Airport, Vancouver International Airport and Calgary International Airport; domestic flights and those arriving from the United States will be exempted. Provinces are also imposing a mandatory 14-day quarantine on all entrants.

Travel restrictions and admission to the U.S. remains a very fluid issue, with other countries potentially being added or removed from the restriction list as the situation evolves in coming weeks on very short notice. We strongly recommend that you check this list from the State Department with updates about restrictions that have been put in place.

Going Remote: Impact on H-1B & L-1 Workers & Compliance Concerns

Many employers are making preparations or recommendations to staff members to work from home, particularly those returning from travel. The global outbreak has employers trying to address concerns over the transfer of the disease in the workplace through handwashing guidance, avoiding close contact, and suspending business travel, in addition to some recommending staff work from home.

For an H-1B employee, an amended petition or LCA should not be required as long as the employee is working in the same capacity and within typical commuting distance of the work location on the original petition and LCA. DOL guidance indicates that LCA posting is required at any “worksite,” but it is a reasonable interpretation that the DOL’s definition of “worksite” does not include a work-from-home arrangement in the same geographic area as the employee’s main worksite. In addition, even if it were a “worksite,” an argument can be made that there is no requirement to post since there are no other employees at that location to whom notice can be given.

For L-1s, as long as they are temporarily working from home in virtually the same capacity, an amended petition is not required.

Please contact your attorney at Berardi Immigration Law to discuss the specific recommended action that may be taken for your national employees working remotely in the U.S. in light off COVID-19. We are committed to guiding our clients through compliance concerns. With the focus on containing the spread of the virus and treating the sickened, it is unlikely that the government will challenge an employer taking reasonable precautions to protect its workforce and community while making every effort to maintain immigration compliance.

F-1 Students in OPT/STEM OPT

Online learning is now permitted for F-1 and J-1 students due to some temporary governmental changes in light of COVID-19. The Student and Exchange Visitor Program (SEVP) has announced that schools may temporarily adapt their programs and school operations to manage public health needs. (Normally, international students are restricted in taking no more than one online class that can count toward their full-time enrollment requirement.) ICE and SEVP has posted guidance to nonimmigrant students and stakeholders.

Consulate & Embassy Office Closures Abroad

Several U.S. consular posts abroad have begun reduced or temporarily suspended visa services. The Department of State has compiled a list of embassy websites for country-specific information concerning COVID-19, which we recommend that visa applicants consult often prior to planning any travel abroad — even to countries that may not appear on the “Travel Ban” list. This page provides links to the COVID-19 dedicated page for each nation’s embassy and includes information concerning health services, recommendations, and in some cases, information concerning a reduction or temporary suspension of visa services.

Notably, U.S. Consulates across Canada and Europe – including London – are no longer processing visas at this time.

USCIS Office Closures

Applicants for immigration benefits (biometrics, green card and naturalization interviews) in the U.S. should consult USCIS’s Office Closings webpage to ensure that the appropriate USCIS field office has not been closed. For those who have a scheduled appointment or interview, USCIS encourages those applicants who are experiencing flu-like symptoms, who have traveled internationally within the 14 days prior to their appointment, or who may have been exposed to COVID-19, to reschedule their appointment/interview, without penalty.

Impact of Layoffs on Nonimmigrants & Green Card Applications

The economic consequences of COVID-19 has caused businesses to consider a variety of budget reduction initiatives, including layoffs, salary reductions. This action might trigger certain obligations of employers under U.S. immigration law. 

For H-1B workers, employers must pay the required wage for the duration of the approved H-1B petition or until there is a bona fide termination of the H-1B worker’s employment. DOL regulations prohibit the “benching” of H-1B workers (where the employee is unpaid for nonproductive time due to a decision of the employer, such as forced unpaid vacation, shutdown, or reduction in scheduled hours). DOL has authority to enforce the H-1B wage obligations and may impose penalties on employers who fail to comply with this requirement. USCIS and DOL regulations also provide that an employer is liable for the reasonable costs of return transportation if an employee is terminated involuntarily before the conclusion of the authorized period of admission in H-1B status. This does not apply to dependents or other nonimmigrant categories.

A foreign national in valid nonimmigrant status (H-1B, L-1, TN, O-1, E-1/2 employee, E-3) who is terminated due to layoff or other unforeseen reasons generally has a 60-day grace period to depart the U.S., or until the end of authorized validity period of their status(the I-94 end date), whichever is shorter. This period gives foreign nationals additional time to find other employment, file a change of status, or wrap-up their affairs in the U.S. as needed.

The American Immigration Lawyers Association’s (AILA) Dept. of Labor Committee has been in touch with the agency to discuss flexibility in meeting recruitment, posting, and wage deadlines for PERM green card matters.  Generally, layoffs in a related occupation to the PERM position which are in the area of intended employment can also impact recruitment requirements for the PERM position. We will work with you on a specific case-by-case basis to determine if and how your green card applicants might be impacted at this time.

There are many safety priorities and obligations employers are contending with during this time that is rapidly changing as more information is available. We will continue to keep our clients appraised of any U.S. immigration issues that might impact them. In the meantime, do not hesitate to reach out with specific questions you might have about yourself or your workforce.

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