Skip to main content

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.

Recent Coronavirus-Related Posts

USCIS to Resume Public Services at Some Offices on June 4

U.S. Citizen and Immigration Services (USCIS) announced its plan to resume offering public services at some of its domestic offices on June 4, 2019. USCIS has been offering only emergency in-person public services for almost three months since it temporarily suspended in-person services at its field offices, asylum offices, and application support centers on March […]

Read More

U.S. Travel Ban Exemption for Professional Athletes Announced

In response to the COVID-19 pandemic, President Trump issued a series of proclamations prohibiting the entry of all aliens who were physically present in China, Iran, the Schengen Area (comprised of 29 European countries), the United Kingdom, and the Republic of Ireland during the 14-day period prior to their entry or attempted entry to the […]

Read More

Employee Layoffs & PERM Labor Certifications: Things to Know

What are PERM Labor Certifications? A permanent labor certification (hereinafter “PERM” or “PERM Labor Certificate”) is issued by the Department of Labor (“DOL”) which allows a U.S. employer to hire a foreign worker to work permanently in the United States.  In most instances, the U.S. employer must submit a labor certification application to the DOL’s […]

Read More

USCIS to Impose 10% Surcharge to Application Fees in Coming Months

United States Citizenship and Immigration Services (USCIS) has announced that it is presently set to run out of money this summer and will begin attaching a 10% surcharge to application fees. Unlike most federal agencies, USCIS operates almost entirely on the money it raises from collected fees. A steep drop in applications for green cards, […]

Read More

USCIS Extends Flexibility for Responding to Agency Requests

USCIS announced on May 1, 2020, that due to COVID-19, it will be extending the flexibilities previously announced on March 30 to assist applicants and petitioners who need to respond to agency requests. These requests include: Requests for Evidence; Continuations to Request Evidence (N-14); Notices of Intent to Deny; Notices of Intent to Revoke; Notices of […]

Read More

USCIS Offices Prepare to Reopen June 4

USCIS announced last Friday that it is presently readying offices to reopen on or after June 4, 2020. USCIS temporarily suspended all in-person services at its field offices, asylum offices, and application support centers beginning March 18, to help slow the spread of the coronavirus (COVID-19). Employees in these offices are continuing to perform mission-essential […]

Read More

DHS Extends REAL ID Enforcement Deadline

In light of the COVID-19 pandemic and the resulting national emergency, several states have closed or restricted services at DMV offices, precluding millions of people from applying for a REAL ID. As such, the Department of Homeland Security announced that the deadline for the enforcement of the REAL ID Act would be extended by one […]

Read More

How to Run an Immigration Law Firm During Coronavirus

Our Managing Partner, Rosanna Berardi, was invited to speak on the podcast “You’re the Expert Now” about running a law firm during the COVID-19 pandemic. Read the intro and listen to the full episode below… “All the borders are closed and Rosanna Berardi, owner of Berardi Immigration Law is still open for business. In this […]

Read More

U.S. Passport Processing Delays Due to Reduced Operations

In response to the COVID-19 pandemic, the U.S. State Department has significantly reduced operations at Regional Passport Agencies and Acceptance Facilities. Effective as of April 10, 2020, Regional Passport Agencies will only accept expedited passport applications from applicants who have a qualified life or death emergency requiring international travel within 72 hours. Applicants will be […]

Read More

Rosanna Berardi Interviewed by Politico about Canada-US Border

Our Managing Partner, Rosanna Berardi, was recently interviewed by Politico in their article “Workers Continue to Cross Canada-US Border as Leaders Scrap for Supplies“. The national story discusses how workers, medical supplies, and more are still crossing the border every day during the COVID-19 pandemic. U.S. Customs and Border Protection reached out to a major […]

Read More

Immigration Updates from USCIS, CBP, DOS, and DOL due to COVID-19

COVID-19 is having a vast impact on immigration operations across all government agencies. To help navigate these challenges, Berardi Immigration Law is providing a summary with the most recent updates from US Citizenship and Immigration Services, Customs and Border Protection, the Department of State, and the Department of Labor.  Updates from USCIS  Premium processing suspended […]

Read More

Not selected in the H-1B lottery? Consider Canada!

In the midst of creating global mobility strategies, our clients typically consider their immigration options for the United States.  However, with H-1B Cap season in process, a lot of our clients do not want to lose their talented employees.  When faced with the prospect of losing employees, we do suggest that our clients consider their options in […]

Read More

Canada’s Mandatory Travel Quarantine: What You Need to Know

On March 25, 2020, Canada announced that it will be invoking the Quarantine Act to impose mandatory self-isolation for international travelers entering the country. Individuals must self-quarantine for 14 days. The quarantine went into effect at midnight last night. This includes individuals crossing at land ports of entry between Canada and the U.S. This is […]

Read More

DHS Announces Form I-9 Requirement Flexibility

The Department of Homeland Security recently announced that due to the physical proximity complications associated with COVID-19, DHS will exercise discretion to defer the physical requirements associated with Form I-9. Employers with employees working remotely due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical […]

Read More

Berardi: Committed To Our Clients

At Berardi Immigration Law, our focus has always been on our clients. That remains the case even in these uncertain times. Given Governor Cuomo’s recent stay-at-home order, the attorneys of our firm are now working at full capacity from home. We want to assure you that if you currently have a case in process with […]

Read More

Berardi on Spectrum News r.e. Coronavirus

Our Managing Partner, Rosanna Berardi, spoke with Spectrum News out of Buffalo about the recent United States/Canada border crossing closing to non-essential travel. “They had to do it out of an abundance of caution. There is so much movement that goes back and forth every single day. The Peace Bridge is one of the busiest […]

Read More