Special COVID-19 News Update Immigration Ramifications
/The situation with COVID-19 continues to evolve. This news blast addresses some current issues related to employment-based immigration. DHS Announces Limited Flexibility in Requirements Related to Form I-9 Compliance COVID-19 and the I-9 In-Person Inspection of Documents Requirement Employers are required to verify a new employee's identity and legal authorization to work in the U.S. by reviewing original documents and completing Section 2 of the Form I-9 (Employment Eligibility Verification) in person within three business days of the first day of employment. As many employers and their employees across the U.S. are telecommuting during the COVID-19 pandemic, they are finding it nearly impossible to comply with this rule. In limited recognition of the dilemma many employers are facing, Department of Homeland Security (DHS) announced on March20, 2020 that the agency will temporarily suspend the in-person review of documents normally required to complete the Form I-9 for employers who have transitioned to a telecommuting policy for a 60-day period, or for three days following the end of the COVID-19 emergency, whichever date is earlier. NOTE:
Employers with any employees physically present at a worksite do not qualify for this exemption
Physical review requirement is temporarily suspended, not eliminated
Employers reviewing copies of documents or via other remote applications should enter "COVID-19" as the reason for the physical inspection delay in the Section 2 "Additional Information" field once physical inspection takes place after normal operations resume.
On the date businesses return to normal, employees have 3 business days to present their original documents to their employer for physical review. Once the documents have been physically inspected, the employer should add "documents physically examined" with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 if the originally presented work authorization has been updated since remotely reviewed.
Timing requirements for completion of the Form I-9 are still the same; Section 1 must still be completed by the employee on or before their first day of work, and Section 2 document review (even if remote) must be completed by the employer (or their authorized representative) within three business days of the start of employment.
Employers who have received a Notice of Intent to Fine (NOI) in March 2020 are also granted automatic 60-day extension to respond.
Please see the official announcement here: https://www.uscis.gov/news/alerts/uscis-announces-flexibility-submitting-required-signatures-during-covid-19-national-emergency
COVID-19 and Dealing with Changes in Job Location, Layoffs, Furloughs, etc.
Many human resources professionals are grappling with tumultuous workplace issues related to sudden location changes of an organization's workforce. In many instances, businesses are having all or most employees working remotely from home.
For employees in H-1B status, telecommuting poses certain challenges in light of applicable U.S. Department of Labor rules. The following are some recent questions we have received:
Q: If an H-1B employee works from home, but is in the same geographic area as his/her office location listed on the Labor Condition Application, what, if anything needs to be done?
A: The geographic area of intended employment means the area within normal commuting distance of the place (address) of employment, or worksite, where the H-1B nonimmigrant is or will be employed. A new LCA does not have to be filed and the H-1B employee is not required to post a LCA notice at their home since no other employees will see it.
For other types of worksite changes, the U.S. Department of Labor (DOL) has provided flexibility due to the COVID-19 crisis. For example, with regard to the hard copy notice, normally the posting is required before the change in worksite for H-1B, H-1B1 or E-3 visa employees. DOL announced on March 20, 2020 that a notice will still be considered timely when placed as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite location (s).
Additionally, employers with an approved LCA may also move H-1B workers to unintended worksite locations outside of the area(s) of intended employment on the LCA using the short-term placement provisions when certain conditions are met. Most applicable in the COVID-19 context is that placement of the individual H-1B worker at any site in an area of employment cannot exceed 30 workdays (consecutive or non-consecutive) within a one-year period. Such placement may be for an additional 30 workdays, but for no more than 60 workdays, in a one year period, where the employer is able to show that the H-1B nonimmigrant maintains ties to the home worksite (e.g., a dedicated workstation at the permanent worksite; the employee's abode is located near that worksite), and the worker spends a substantial amount of time at the permanent worksite. There are additional requirements including reimbursement for travel and meals that need to be considered before an employer chooses to exercise its options under the short term placement rule.
See this link for U.S. DOL's Fact Sheet #62 on short-term placements: https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs62K.pdf
Lay-offs & Furloughs in the Context of Temporary Work Categories:
Sadly, due to the economic downturn resulting from COVID-19, there are reports that employers are considering lay-offs, decreasing work hours, or furloughing employees. The following summary examines each scenario in the context of foreign national employees in a temporary work status:
Q. If I have to layoff or termination of an employee in E-1/E-2/E-3/H-1B/TN/L-1/O-1 status, what do I have to do?
A. The H-1B and O-1 categories explicitly require the employer to notify USCIS of a termination of employment. In general, for nonimmigrant work categories, when the employer sponsoring the work visa terminates employment, the foreign national will lose employment authorization on the date of termination. However, many foreign nationals who have been terminated will be eligible for a a grace period of up to 60 days to find a new employer sponsor, leave the U.S., or apply to change status to a different category. In addition, employers are required to offer transportation home to foreign nationals in the H-1B and O-1 context.
Reduction of Work Hours:
Employers who plan to reduce pay of foreign nationals in H-1B status must notify USCIS of reduction by filing an H-1B amendment. Once filed, the employee may work under reduced pay. Please note filing an amended H-1Bpetition can take two or more weeks to prepare as a new LCA will need to be obtained from the DOL covering the new terms of employment. Until the amended petition is filed, the employer remains responsible for the payment of wages pursuant to the existing H-1B petition and supporting LCA
Furloughs:
This situation is occurring where the employer needs to temporarily suspend employment either through government order (for example, here in Massachusetts, Governor Baker has required suspension of all construction projects) or lack of work due to COVID-19.
While foreign nationals that are furloughed are still considered employees, employers of H-1B employees face rules which require the H-1B employee to continue to be paid even during a period of nonproductive status and even if U.S. workers are also not being paid.
Therefore, employers must adhere to the DOL's no benching provisions even during work furloughs due to the COVID-19 crisis.
In addition, if a foreign national employee is furloughed, faces reduction in work hours, or is laid off, the foreign national must preserve legal status.
USCIS Updates:
Electronic Signatures Allowed Temporarily:
Normally, USCIS requires USCIS forms contain original or "wet" ink signatures when submitted to USCIS. Due to the unprecedented situation of telecommuting and numerous jurisdictions with sheltering in place orders, USCIS announced on Friday, March 20, that forms may be submitted with copies of original signatures until further notice.
USCIS Suspends Premium Processing for Forms I-129 and I-140
On March 20, 2020 USCIS announced "the immediate and temporary suspension of premium processing service for all Form I-129 and I-140 petitions until further notice due to Coronavirus Disease 2019 (COVID-19).
USCIS will process any petition with a previously accepted Form I-907, Request for Premium Processing Service, in accordance with the premium processing service criteria. ...
This temporary suspension includes petitions filed for the following categories:
I-129: E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-1 and TN-2.
I-140: EB-1, EB-2 and EB-3.
The suspension includes new premium processing requests for all H-1B petitions, including H-1B cap-subject petitions for fiscal year 2021, petitions from previous fiscal years, and all H-1B petitions that are exempt from the cap. USCIS previously announced the temporary suspension of premium processing for FY 2021 cap-subject petitions and tentative dates for resumption of premium processing service. This announcement expands upon and supersedes the previous announcement."
COVID-19 Department of State and US Customs & Border Protection:
Foreign nationals in the U.S. here under ESTA/Visa Waiver may be unable to leave before their authorized stay in the U.S. expires because of COVID-19 related issues may be able to apply for "Satisfactory Departure."
Under Immigration regulations, if an emergency situation exists that prevents a visitor admitted under the VWP from departing the United States within the period of authorized stay, a period of Satisfactory Departure may be granted not to exceed 30 days - provided that the request is made during the period of admission and the visitor is still in status at the time of the request. If departure is made within the period of approved Satisfactory Departure, the visitor is regarded as having made a timely departure without overstaying the allowed time. In emergent circumstances, requests for Satisfactory Departure may be granted if the visitor is out of status but can prove he or she intended to depart timely. Authority to approve these cases is reserved for the Director, Field Operations, unless re-delegated locally.
Many visitors admitted under the VWP may be stranded at U.S airports due to canceled flights. Where appropriate, CBP should grant Satisfactory Departure if the visitor is stranded due to a canceled flight and the period of VWP admission is expiring prior to the traveler's ability to depart.
Due to the unprecedented COVID-19 situation, CBP airports around the country are providing instructions to carry out Satisfactory Departure Policy. For example, CBP at Boston Logan Airport has instituted the following Satisfactory Departure Policy:
If individuals were admitted under the VWP/ESTA program AND are unable to depart the U.S. before their current period of admission(must be within the 14 days or less from the date of request) because of COVID-19 related issues such as, believe that they may have been exposed to COVID-19 OR are not able to board a flight because they are experiencing ANY flu-like symptoms (such as a runny nose, headache, cough, sore throat or fever) OR No available flights, OR other related health reasons, they may submit a request (individually or through their attorney) to CBP Logan Deferred Inspection office via email: cbp.boston.i94@cbp.dhs.gov , with the following information:
Subject line: VWP Satisfactory Departure
Body of Email:
Individual's name
Date of Birth (DOB)
Passport Number
I-94 number and expiration date
Reason for request
Attach to the email:
Passport biographic Page
I-94
Original departure flight itinerary along with the new flight itinerary, if available
Evidence to support the request, if available
CBP Logan Airport notes to not call Deferred Inspection office to follow up as each individual will be notified of CBP's decision.
Travel:
Broader sweep of countries not permitted to enter the U.S. by Centers for Disease Control and Prevention and Health & Human Services:
Notification of a CDC (Centers for Disease Control and Prevention) order suspending the introduction into the United States of persons from a country where a communicable disease exists, due to the existence of COVID-19 in certain foreign countries. The order is effective at 11:59 pm (ET) on 3/20/20. The order does not apply to United States citizens, lawful permanent residents, persons from foreign countries who hold valid travel documents, or persons from foreign countries in the visa waiver program who are not subject to travel restrictions. (85 FR 16567, 3/24/20)
See link for countries affected at the CDC link:
https://www.cdc.gov/coronavirus/2019-ncov/travelers/after-travel-precautions.html
Executive Orders China, Iran, Schengen Countries, Ireland and U.K.:
China Travel Proclamation. This Corona Virus travel ban became effective starting 5 p.m. on Sunday, February 2, 2020.
Iran Travel Proclamation. This Corona Virus travel ban became effective starting 5:00 p.m. eastern standard time on March 2, 2020. This proclamation does not apply to persons aboard a flight scheduled to arrive in the United States that departed prior to 5:00 p.m. eastern standard time on March 2, 2020.
European Schengen Area Proclamation. This proclamation became effective at 11:59 p.m. eastern daylight time on March 13, 2020.
Note: the European Schengen area includes: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.
Ireland and United Kingdom Proclamation., This proclamation became effective at 11:59 p.m. eastern daylight time on March 16, 2020.
The proclamations do not apply to U.S. citizens, or to any person who is:
a lawful permanent resident of the United States
a spouse of a U.S. citizen or lawful permanent resident
a parent or legal guardian of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21;
a sibling of a U.S. citizen or lawful permanent resident, provided that both are unmarried and under the age of 21;
a child, foster child, or ward of a U.S. citizen or lawful permanent resident, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;
a person traveling at the invitation of the United States Government for a purpose related to containment or mitigation of the virus;
C (transit) or D (air or sea crew member) nonimmigrants
seeking entry into or transiting the United States pursuant to an A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 visa;
a person whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the CDC Director, or his designee;
a person whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees based on a recommendation of the Attorney General or his designee; or
a person whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.
Canada & Mexico:
Two Executive Orders related to travel from Canada & Mexico were announced and became effective as of 11:59 p.m. EDT on March 20, 2020 with official publication scheduled for March 24, 2020 These restrictions are temporary in nature and shall remain in effect until 11:59 p.m. EDT on April 20, 2020:
For purposes of the temporary alteration in certain designated ports of entry operations authorized under 19 U.S.C. 1318(b)(1)(C) and (b)(2), travel through the land ports of entry and
ferry terminals along the United States-Canada border and United States-Mexico border shall be limited to "essential travel," which includes, but is not limited to-
U.S. citizens and lawful permanent residents returning to the United States;
Individuals traveling for medical purposes (e.g., to receive medical treatment in the United States);
Individuals traveling to attend educational institutions;
Individuals traveling to work in the United States (e.g., individuals working in the farming or agriculture industry who must travel between the United States and Canada in furtherance of such work);
Individuals traveling for emergency response and public health purposes (e.g., government officials or emergency responders entering the United States to support Federal, state, local, tribal, or territorial government efforts to respond to COVID-19 or other emergencies);
Individuals engaged in lawful cross-border trade (e.g., truck drivers supporting the movement of cargo between the United States and Canada);
Individuals engaged in official government travel or diplomatic travel;
Members of the U.S. Armed Forces, and the spouses and children of members of the U.S. Armed Forces, returning to the United States; and
Individuals engaged in military-related travel or operations.
The following travel does not fall within the definition of "essential travel" for purposes of this notification-
Individuals traveling for tourism purposes (e.g., sightseeing, recreation, gambling, or attending cultural events).
At this time, this Notification does not apply to air, freight rail, or sea travel between the United States and Canada, and the United States & Mexico but does apply to passenger rail and ferry travel between the United States and these countries.
Canada Link
Mexico Link
The Centers for Disease Control (CDC) also has information related to travelers and clinicians about current health issues that impact travelers' health, like disease outbreaks, special events or gatherings, and natural disasters, in specific international destinations. See types of travel notices.
Suspension of Visa Appointments:
In response to significant worldwide challenges related to the COVID-19 pandemic, the Department of State is temporarily suspending routine visa services at all U.S. Embassies and Consulates. Embassies and consulates will cancel all routine immigrant and nonimmigrant visa appointments as of March 20, 2020. As resources allow, embassies and consulates will continue to provide emergency and mission critical visa services. Our overseas missions will resume routine visa services as soon as possible but are unable to provide a specific date at this time.
See full announcement here: https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html
