Trapped or Scared to Leave on Time?

DHS has not issued any blanket, automatic extension of people's periods of U.S. stay in temporary status (yet).

VWP Visitors: Within 14 days of the end of the normal 90 days allowed, a traveler here under the Visa Waiver Program (using ESTA registration) may contact the CBP Deferred Inspection Unit to request up to 30 days of "satisfactory departure." Beyond that, it's technically unlawful.

Students and Schools: Most schools are closed, and students are urged to return to their home countries. ICE's SEVP has issued a comprehensive Q&A document about the implications of COVID-19 on F-1 student programs.

Other Nonimmigrants: Before the current authorization ends according to your I-94 record (see here), file an application to extend stay in the same classification or change to another classification. And if USCIS takes longer to decide the extension than the period requested, file a further extension application before that requested period expires. People who previously preferred to get new U.S. visas on next foreign travel will need to face the scrutinizing eyes of USCIS adjudicators instead. Most people who would have needed to travel internationally and return will need to just stay put in the USA.

Those who stay longer than technically allowed become deportable, the visas in their passport are automatically canceled by law, and their future requests for visas or entry might be tainted by overstay. Once an overstay reaches 180 days, a person becomes inadmissible to return once having departed. Longer stays could trigger becoming a U.S. "tax resident" with numerous tax consequences (consult your tax counsel).

Sent Home or Laid Off from Work?

People on work visas normally are considered in violation of status and deportable upon ceasing the authorized work. Employers must pay H-1B workers even if "benched" unless they are offered the costs of travel to home country. Unavailability for work due to COVID-19 infection, quarantine, or caring for another could trigger complex considerations requiring individualized analysis. Unemployment compensation normally is not available to people who cannot stay here. If a foreign worker somehow is awarded unemployment compensation, it should not affect "public charge" inadmissibility under new rules that only consider federal public benefits as strong grounds.

For certain visa classifications (especially H-1B, E-3, or H-1B1), work from home or reduction in hours or pay rate may trigger some special filings or postings, but for others it is fine. Layoffs in the relevant occupation may affect certain H-1B, PERM, and other filings.

Travel on the Continent of North America

The U.S., Mexico, and Canada have closed off non-essential travel between them, even if people have a visa, but this does not restrict return to one's country of citizenship. What is "essential" is as tricky for this as for continuing business in U.S. states where a Governor has restricted non-essential activity. Obviously, tourism won't count, and delivery of supplies will count.

Other U.S. Travel Bans: The U.S. has banned entry for anyone who has been in China, Iran, or Europe during the prior 14 days. Traveling elsewhere for 14 days might work, but new bans can pop up at any time. U.S. citizens and permanent residents may return, but they will be routed through certain airports and may be quarantined up on entry.

Closures of All Public Interfacing Agencies

Visa functions of most U.S. consulates throughout the world are essentially closed. Fees paid will be good for a year. Appointment systems seem to anticipate reopening in July, but of course things could change. Special requests for expediting anyway are conceivable but success will be rare in compelling "emergency travel" circumstances, although the State Department has specifically mentioned H-2A and H-2B temporary workers, international adoptions in late stages of processing, and medical workers and especially those who may treat COVID-19 patients.

ESTA registrations for travelers on the Visa Waiver Program are canceled and suspended for all the countries that are subject to the travel ban above. This means such visitors can only travel with visas that are unavailable from closed consulates.

All USCIS interviews, biometric intake, ceremonies, and other appointments are closed. USCIS will send re-scheduling notices at some point without being asked. People whose Infopass appointments (for such things as interim I-551 stamps for conditional residents awaiting adjudication) must watch for reopening and then call USCIS to reschedule. USCIS plans to re-use previous biometrics where possible to avoid new biometrics intake, particularly for extension of work cards.

Trapped Outside the U.S.

Workers who are unable to return to U.S. jobs because of COVID-19 restrictions are not prohibited by any U.S. immigration laws from working outside the U.S., but such work might trigger obligations and liabilities under the laws of the country where the work is physically being performed. No U.S. immigration-related law would restrict an employer from suspending or terminating their employment.

People who were not able to travel to the U.S. within the validity dates of nonimmigrant and immigrant visas they already have been issued will need to apply for re-issuance by consulates once they reopen.

Immigration Filings

USCIS has been increasingly accepting scanned copies of hand signatures to forms, and now they will accept such for Forms I-129, I-539, and I-131 as well, but signing parties are required to hold on to the originally signed paper in case USCIS asks for it.

The brand new electronic registration process for the H-1B lottery was not interrupted and ended on March 20. Winners are being instructed to file their H-1B petitions with USCIS within the originally planned 90 days.

Postings for existing workers about H-1B cases should be done electronically if workers are at home. PERM notices must be posted on paper, and employers perhaps should wait until workers return to the office to post. DOL has extended by 60 days the periods when posting notices and other recruitment can be completed (recruitment must have started on or after September 15, 2019, and the filing must occur by May 12, 2020), and says it will grant extensions of time and deadlines for all kinds of requests and requirements.

All "premium processing" is suspended as of March 20, apparently because USCIS cannot anticipate having the staff to keep up with the 15-day processing. This could leave many foreign nationals in the U.S. unable to work while waiting for lengthy adjudication.

USCIS has announced that it will automatically extend deadlines 60 days to file an appeal of a USCIS denial or to respond to USCIS requests for evidence, notices of intent to deny, notices of intent to revoke a petition, or notice of intent to terminate an EB-5 regional center if the denial of notice was dated between March 1 and May 1, 2020.

Trusted traveler applications to CBP are suspended.

Employment Verification Relaxed

Given the level of working from home, even by human resources personnel, ICE will allow employers to complete Form I-9 remotely instead of seeing the worker and original documents in person (writing "COVID-19" in "Additional Information"), but only if no one is at the workplace, and once normal operations resume a company representative must complete in-person verification within three business days (writing "Documents physically examined on [date]" under "Additional Information"). This is in effect until the earlier of May 19, 2020 or the termination of the National Emergency. Employers instead my allow any person to be a "company representative" completing section 2 of Form I-9 and reviewing the worker and documents, but the employer is responsible for the representative acting correctly.

USCIS recognized that E-Verify queries arising from completed I-9 forms might be entered late (use the original hire date and select "Other" and enter "COVID-19" as the reason for late query) and has extended the normal 10 days allowed to resolve a "tentative non-confirmation" arising from an E-Verify query by participating employers, emphasizing that employers should take no adverse action during the delayed TNC resolution.

ICE has automatically extended by 60 days the time to respond to a notice of I-9 inspection.

Immigration Enforcement

Like jails, immigrant detention centers for those awaiting removal hearings are powder kegs for infection spreading. Some detention officers already have tested positive. Advocates are requesting en masse release. Judges are limiting detention more to criminal grounds of removal. Federal judges have entered some injunctions ordering release from detention of vulnerable categories and children.

ICE has committed not to go raiding health facilities, so that aliens will not fear getting treatment.

Despite pleas from immigration judges themselves and groups who appear before them, immigration courts mainly are still open, but focusing on cases for detained aliens and deferring non-detained cases. Practitioners must supply their own protective gear or participate remotely but perhaps without access to documents introduced by ICE.

The Department of Health and Human Services has issued regulations implementing federal law allowing CDC to suspend entry of persons from countries posing a health danger. CDC has implemented this only to bar entry from land ports in Canada and Mexico, essentially for people who do not have proper travel documents, whose entry is otherwise contrary to law, and who are apprehended near the border seeking to unlawfully enter the United States between POEs. In other words, the Administration is using this to avoid having to take in asylum seekers while they await hearings.