Immigration Procedural Updates, Changes and Suspensions as a Result of COVID-19

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Highlights

  • Various U.S. authorities have made temporary changes in the past few weeks affecting U.S. immigration at all levels.
  • Some of these temporary changes address specific questions and issues faced by foreign nationals and employers in the U.S., but some questions and issues remain unresolved at this time.
  • Holland & Knight is closely monitoring these changes and will provide updates as appropriate.

There have been many changes to immigration processes and procedures as a result of COVID-19, and there are no doubt more to come. Set forth below is a summary of some recent changes. Holland & Knight will provide further updates as needed to keep you abreast of the relevant developments.

Routine In-Person Services at USCIS and U.S. Embassies and Consulates

U.S. Citizenship and Immigration Services (USCIS) has suspended all in-person routine services as of March 18, 2020, until April 1, 2020. USCIS will continue to process non-in-person activities. Significant delays are expected because of the COVID-19 pandemic. Likewise, most U.S. Embassies and Consulates have suspended all visa services except for emergency situations, and it is expected that the bar for what will be considered an emergency will be very high. Anyone with an in-person interview at USCIS, whether for a green card, naturalization, asylum or other purpose, will be rescheduled.

INFOPASS Appointments at USCIS

For individuals who scheduled their own appointments through INFOPASS, you will need to reschedule your appointment through the USCIS Contact Center once your individual USCIS Field Office opens to the public. Check the status of your local USCIS Field Office here.

Application Support Center Appointments

If you have an appointment at a USCIS Application Support Center to have biometrics taken, the USCIS will automatically reschedule and send you a new notice once it resumes activity.

Suspension of Premium Processing Service

The USCIS has temporarily suspended until further notice premium processing for all Forms I-129 and Forms I-140. USCIS intends to honor those premium processing requests filed prior to the suspension. Any premium process petitions not processed within the required 15 calendar days will be given a refund of the premium processing fee.

Signature Flexibility

USCIS has announced temporary flexibility in signing USCIS forms. As such, USCIS forms can be filed using copies of wet signatures as long as the original wet signature is retained, as USCIS can ask for it at any time. The practical effect of this is that under the current circumstances, USCIS forms can be filed using copied signatures.

Form I-9 Employment Verification

The Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) announced on March 20, 2020, flexibility in requirements for Form I-9 compliance, including an exercise of discretion concerning the physical presence requirements for Form I-9. As such, employers will be permitted to electronically review I-9 documents, which verify whether an employee is authorized to work in the U.S., if the employer has implemented a teleworking policy due to the virus. Additionally, even though ICE requires employers to examine certain documents in person, the agency said employers can conduct in-person reviews of Form I-9 evidence once businesses resume normal operations. However, this must happen within three days of business resuming.

Form I-9 Notice of Inspection

For employers who have received a Form I-9 Notice of Inspection (NOI), ICE has given employers an additional 60 days to respond to audits if the employer was served with the NOI in March.

Suspended Entries from Certain European Countries

The president has issued travel bans pursuant to which travels from various countries are not permitted to enter the U.S. Specifically, the travel ban applies to individuals who have been physically present in the identified country for or during the 14 days prior to their planned travel to the U.S. The identified countries include China, excluding Hong Kong and Macau; Iran; the 26 countries in the Schengen Area comprising 26 European countries (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and Switzerland); the United Kingdom and Ireland.

The U.S. Department of State has advised that requests for exceptions to the travel restrictions should be presented directly to embassies and consular posts where visa applications are filed. Each post or the scheduling contractors managing visa appointments for a post should have information concerning applicable procedures, and that processes and procedures at posts are extremely fluid at this time.

The State Department has advised that both it and DHS have authority to adjudicate national interest exceptions, but that these exceptions will rarely be approved.

To obtain a visa under an exception, applicants will need to contact a visa issuing embassy or consulate and follow the procedures to apply. The procedure for requesting an emergency appointment varies by post. Often, emergency appointment request procedures are part of the normal online appointment system, but some posts instruct applicants to email them directly. For some posts, visa applicants with urgent travel that qualifies for an exception under the proclamations issued in recent weeks will be directed to an online application in order to submit an emergency appointment request.

Extending ESTA/Visa Waiver – JFK and Newark Airports

Foreign nationals admitted to the U.S. through John F. Kennedy Airport (JFK) or Newark Liberty International Airport (EWR) under the Visa Waiver Program (VWP) or ESTA program (ESTA) who are unable to leave the U.S. before their current period of admission expires can contact the Deferred Inspections office at JFK, starting Monday, March 16, 2020, Monday – Friday, 9 a.m. – 4 p.m. ET, and request Satisfactory Departure for up to 30 days. Individuals or their attorneys will need to provide the traveler's name, date of birth and passport information at the time of the request and may be asked to provide the original departure flight itinerary along with the new flight itinerary.

Individuals and their attorneys are permitted to request Satisfactory Departure if the individual's period of authorized stay will expire in 14 days or less from the day he or she contacts JFK Deferred Inspections. If the individual's period of VWP/ESTA admission has expired, the decision to grant Satisfactory Departure will be considered on a case by case basis.

To contact JFK Deferred Inspection to make the Satisfactory Departure Request, individuals should call (718) 553-3683 or (718) 553-3684 Monday – Friday, 9 a.m. – 4 p.m. ET, with the above-required information in front of them.

If you entered the U.S. through an airport other than JFK or EWR and find yourself in need of Satisfactory Departure, you can contact your port of entry and explain what JFK and EWR are doing and ask if they will do the same for you.

No decisions have been made regarding what will happen for individuals who are unable to travel once their Satisfactory Departure is expired, but this is being looked into and the American Immigration Lawyers Association is in talks with USCIS and Customs and Border Protection (CBP) regarding this.

Unfortunately, there is no provision under U.S. law to extend the stay of a foreign national admitted to the U.S. under the VWP or ESTA. The only form of relief for a foreign national in such situation due to emergent circumstances is the exercise of Satisfactory Departure, which may not be granted for more than 30 days and the request for which must be made during the individual's period of admission while the foreign national is still in status. If departure is made within the period of approved Satisfactory Departure, the foreign national is deemed to have made a timely departure without overstaying the allowed time. In emergent circumstances, requests for Satisfactory Departure may be granted if the foreign national is out of status but can prove the intent was to depart timely – authority to approve these cases is reserved for the Director, Field Operations, unless re-delegated locally.

Requests for Satisfactory Departure are generally adjudicated by USCIS. However, in extraordinary circumstances, CBP may adjudicate requests for Satisfactory Departure. Many aliens admitted under the VWP may be stranded at U.S. airports due to canceled flights. Where appropriate, CBP should grant Satisfactory Departure if the alien is awaiting a canceled flight and the period of VWP admission is expiring prior to the traveler's ability to depart.

Suspension of Travelers from Canada

On March 18, 2020, the Canadian government started limited foreign nationals that could enter Canada such that it closed its borders to foreign nationals. U.S. and Canadian officials have mutually determined that nonessential travel between the U.S. and Canada poses additional risk of transmission and spread of COVID-19 and places the populace of both nations at increased risk. The U.S. and Canada have therefore mutually agreed to limit travel between the U.S. and Canada.

As such, as of March 20, 2020, and through April 20, 2020, the U.S. land ports of entry along the U.S.-Canadian border have suspended normal operations and will process for entry only those travelers engaged in "essential travel" defined below, for entry into the United States. Given the definition of essential travel below, this temporary suspension of operations are land ports of entry should not interrupt legitimate trade between the U.S. and Canada or disrupt critical supply chains that ensure food, fuel, medicine, and other critical materials reach individuals on both sides of the border.

Essential travel includes, but is not limited to, the following:

  • 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 U.S. and Canada
  • Individuals engaged in official government travel or diplomatic travel
  • Members of the U.S. Armed Forces, their spouses and children returning to the United States
  • Individuals engaged in military-related travel or operations

Traveling to the U.S. for tourism purposes sightseeing, recreation, gambling or attending cultural events does not fall within the definition of "essential travel" for purposes of the restriction.

At this time, the travel restriction does not apply to air, freight rail or sea travel between the U.S. and Canada, but does apply to passenger rail and ferry travel between the U.S. and Canada.

Suspension of Travelers from Mexico

The Mexican Ministry of Education has closed all schools from March 20, 2020, until April 20, and between March 23, 2020, and April 19, 2020, the Mexican government has implemented a domestic social-distancing campaign to minimize the spread of COVID-19. U.S. and Mexican officials have mutually determined that nonessential travel between the U.S. and Mexico poses additional risk of transmission and spread of COVID-19 and places the populace of both nations at increased risk. The U.S. and Mexico have therefore mutually agreed to limit travel between the two countries.

As such, as of March 20, 2020, and through April 20, 2020, the U.S. land ports of entry along the U.S.-Mexican border have suspended normal operations and will process for entry only those travelers engaged in essential travel defined below, for entry into the United States. Given the definition of essential travel below, this temporary suspension of operations are land ports of entry should not interrupt legitimate trade between the U.S. and Mexico or disrupt critical supply chains that ensure food, fuel, medicine and other critical materials reach individuals on both sides of the border.

Essential travel includes, but is not limited to, the following:

  • 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 Mexico 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 U.S. and Mexico
  • Individuals engaged in official government travel or diplomatic travel
  • Members of the U.S. Armed Forces, and their spouses and children returning to the United States and
  • Individuals engaged in military-related travel or operations

Traveling to the U.S. for tourism purposes sightseeing, recreation, gambling or attending cultural events does not fall within the definition of essential travel for purposes of the restriction.

At this time, the travel restriction does not apply to air, freight rail, or sea travel between the U.S. and Mexico, but does apply to passenger rail and ferry travel between the U.S. and Mexico.

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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