COVID-19's Latest Impact on Business Immigration

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President Donald Trump’s executive action putting a temporary hold on the entry of certain immigrants to the United States has so far had a limited impact on most business immigration. That is primarily because the majority of business immigration applicants pursue permanent residency (green cards) within the U.S., which is not affected by the executive action. In addition, the recent proclamation also did not include any restriction on nonimmigrant visa holders. However, it is important to note that further restrictions could be coming this month based on the proclamation’s mandate for federal leaders to recommend other measures related to nonimmigrant programs, which include visas for temporary executives, senior managers, specialists, or other essential workers.

Otherwise, the federal government has recently extended some flexibility for business immigration and announced initial steps to return to more normal operations. Below you’ll find more detail on those announcements and others impacting business immigration over the past two weeks:

  • U.S. Citizenship and Immigration Services is aiming to reopen its offices “on or after June 4.” In-person services at its field offices, asylum offices, and application support centers have been suspended since mid-March, although employees have been doing certain “mission-critical” services in the meantime. In announcing on April 24 its plans to reopen, USCIS said it will send notices to applicants and petitioners with scheduled appointments and naturalization ceremonies impacted by the extended temporary closure, along with interview cancellation notices as applicable. It will also automatically reschedule asylum interviews. 
  • USCIS announced on May 1 it is extending flexibility for applicants and petitioners who are responding to requests for evidence (RFEs), notices of intent to deny (NOIDs), and other notices listed in the announcement. That flexibility now applies to requests and notices dated between March 1 and July 1, 2020. USCIS will consider responses “received within 60 calendar days after the response due date set in the request or notice” before it takes any action. This is an important consideration for businesses that may struggle to collect evidence and prepare detailed responses to such USCIS requests or notices on pending cases. As has been the case for the last year, we have continued to see a heightened level of scrutiny on all cases and a thorough preparation to any request is critical. 
  • Also on May 1, the U.S. Department of Homeland Security announced additional flexibility related to Form I-9 and E-Verify requirements to verify employment eligibility. The department noted that “employees may experience challenges renewing a state driver’s license, a state ID card,” or other List B identity documents because of stay-at-home orders. As of May 1, List B identify documents that would have expired on or after March 1 “may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes.”
  • The U.S. State Department also gave an update on May 1 on delays related to U.S. passports and the continued suspension of expedited processing. The State Department has “extremely limited U.S. passport operations” and is telling people who apply or renew now that they will “experience significant delays of several months to receive your U.S. passport and the return of your citizenship evidence documents (such as birth certificates or naturalization certificates).” For that reason, the department is encouraging people to wait unless they have a life-or-death emergency.

As a reminder, any changes to the employment terms and conditions of your foreign workforce could have additional consequences on their legal status in the United States. It is important to remember that as many companies continue to confront difficult choices with respect to ongoing business needs and employment.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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