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Seyfarth Synopsis: The outbreak of the Novel Coronavirus (COVID-19) has resulted in unprecedented travel restrictions, U.S. consular appointment cancellations, and changes to USCIS operations. To help navigate these challenges, Seyfarth is providing a brief summary of recent developments from the U.S. Department of Homeland Security, U.S. Department of State, and U.S. Department of Labor.
Updates from the U.S. Department of Homeland Security
- H-1B Cap Registration Timeline: The online registration for FY 2021 cap H-1B petitions officially closed on March 20, 2020. With respect to next steps, USCIS will begin the random selection process, notifying employers and legal representatives of the lottery results by March 31, 2020. There will be a 90 day filing period for those selected in the annual cap H-1B lottery. Based on the results of the lottery, your Seyfarth contacts will confirm if an individual has been selected, deferred, or rejected in the annual lottery.
- Premium Processing Suspended for all I-129 and I-140 Petitions: Citing COVID-19’s impact on its operations, effective March 20, 2020, USCIS has indefinitely suspended premium processing for all I-129 and I-140 petitions. This suspension includes FY 2021 cap H-1B petitions. USCIS will notify the public when premium processing has been reinstated for I-129 and I-140 petitions.
The potential impact this suspension may have on certain individuals, includes:
- Individuals relying on H-1B cap-gap employment authorization may remain in the United States if USCIS does not make a decision by October 1, 2020; however, such individuals will not be work-authorized as of October 1, 2020 unless the petition has been approved; and
- H-1B nonimmigrants who are running up against the six-year H-1B maximum period of stay and require an I-140 approval to extend status will need to work closely with their counsel on options and strategies for minimizing an interruption in employment.
Please see Seyfarth’s blog post here for more details on the effect of premium processing on various visa classifications.
- Petition Signature Requirements: Realizing the difficulties surrounding original “wet ink” signatures in work-from-home environments, effective March 21, 2020, USCIS has relaxed the original signature requirements for certain petitions by allowing for “electronically reproduced original signatures for the duration of the [COVID-19] National Emergency.” What this means is that signatories may provide Seyfarth with a scanned copy of the original “wet ink” signatures of petition forms requiring original signatures. However, the signatory will need to retain the original “wet ink” signature because USCIS “may, at any time, request the original documents.” Thus, it remains unclear if signatories will elect to provide scanned copies of the original, signed forms. Please read the announcement from USCIS here.
- USCIS Cancels In-Person Appointments: Appointments scheduled between March 18, 2020 and April 7, 2020 at USCIS Application Support Centers (ASCs), field offices, and asylum offices have been cancelled. This means that I-485 interviews at field offices or biometrics appointments at ASCs scheduled during this time period will be cancelled. It is possible that USCIS will extend the temporary closure of these offices for a longer period of time. Those impacted may not receive cancellation notices, but should receive new appointment notices from USCIS field offices and ASCs when normal operations resume. Please read the USCIS update here for more details or contact your attorney at Seyfarth for additional guidance regarding your specific case.
COVID-19 Travel Restrictions Enforced by U.S. Customs and Border Protection
- Non-Essential Travel Suspended from Mexico and Canada: Effective until at least April 20, 2020, travel at the United States-Mexico and United States-Canada land borders will be restricted to “essential travel.” Some prominent examples of essential travel include U.S. citizens or lawful permanent residents returning to the United States from Mexico or Canada, individuals traveling to work in the United States (e.g. agricultural workers that commute daily), or individuals traveling to attend educational institutions in the United States. Non-essential travel, on the other hand, is defined as traveling for tourism purposes such as sightseeing, recreation, or cultural events. It is worth noting that this temporary suspension of non-essential travel does not currently apply to airport ports of entry to the United States.
Seyfarth expects potential delays and increased scrutiny of all land border applicants seeking to enter the U.S. from Canada or Mexico. While the CBP guidance regarding “essential travel” includes those “traveling to work in the United States,” Seyfarth expects some inconsistency in enforcing this provision. Those traveling to the U.S. at a land border in TN, L-1, or H-1B status should contact Seyfarth so we can advise and prepare you accordingly.
- Other COVID-19 Travel Restrictions that Remain in Place: Due to COVID-19, President Trump has issued proclamations to suspend travel to the U.S. by foreign nationals, immigrant or nonimmigrant, who were physically present within 30 designated countries during the 14-day period preceding their entry or attempted entry to the United States. These 30 countries include Austria, Belgium, China, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Iran, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. There are some exceptions included in the proclamations. Some notable exceptions include travel by lawful permanent residents (“green card” holders); spouses of U.S. citizens or lawful permanent residents; parents or guardians of U.S. citizens or lawful permanent residents who are unmarried and under the age of 21 years old; and U.S. military personnel, along with their spouses and children. Please see Seyfarth’s detailed guidance on this matter here and here. If you are attempting to return to the United States as a U.S. nonimmigrant from any of the impacted countries, please contact Seyfarth for further guidance.
ICE and Employer Compliance Obligations
- I-9 Compliance Flexibility: On March 20, 2020, the Department of Homeland Security (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 the Section 2 verification or Section 3 reverification process remotely, which must normally be completed in-person. DHS has stated that this exception is not available when employees are physically present at an employer’s work location. This directive on the exception, however, is nuanced and should be discussed with legal counsel before making decisions on when exceptions may apply.
Some of the DHS guidance, and Seyfarth suggestions, appears below:
- Employers operating remotely may inspect documents remotely/virtually (“video link, fax, or email”) for Section 2 verification or Section 3 reverification. Section 2 must be completed within 3 business days of the hire date. Section 3 on or before the date of the employee’s work expiration. We recommend that the person completing Section 2 enter “COVID-19” in the Additional Information Box, at the time the Form is initially executed.
- Remember this is now a “two-touch” process. Physical inspection must take place within three business days after normal operations resume; Employers should ensure that “COVID-19” was previously written on the Form I-9 as the reason for the physical inspection delay. When updating the I-9 during the physical inspection, we suggest that the person conducting the in-person review of the identity and work eligibility document(s) add “Documents Physically Examined by [Last Name, First Name] on [date of the inspection]” to the Section 2 Additional Information Box on the Form I-9, or to Section 3 as appropriate. It will be critical to watch timing here as DHS implied that “[a]ny audit of subsequent Forms I-9 would use the 'in-person completed date' as a starting point…” for timeliness violations.
- Employers using a Remote/Virtual Section 2 verification or Section 3 reverification must provide written documentation of their remote onboarding and telework policy for each employee. We consider this to reference the company’s overall policy in light of COVID-19, and suggest it recognize an allowance for temporary remote/virtual onboarding, including Form I-9, as well as the necessary re- inspection. This I-9 reference may need to be included in a statement separate from the overall company remote policy.
- Remember that employers may still designate an Authorized Representative to act on their behalf to complete Section 2 under this new guidance. An Authorized Representative can be any person the employer designates to complete and sign Form I-9 on their behalf. DHS guidance reminds employers they are liable for any violations in connection with the form or the verification process committed by the Authorized Representative. The benefits of using of this Authorized Agent model vs. the Virtual/Remote I-9 completion model, described above, is something employers should consider carefully with experienced counsel.
- The temporary relaxation of the in-person requirement is only in effect until either May 19, 2020 or within 3 business days of the termination of the National Emergency declared on March 13th, whichever date occurs earlier in time.
- Notices of Inspection (NOIs): Employers that had been served NOIs during the last wave of worksite enforcement actions taking place during the month of March 2020 and have not already responded will be granted an automatic extension for 60 days from the effective date. Homeland Security Investigations (HSI) will still move forward on criminal related matters but in general employers can expect a hiatus of administrative audits during the COVID-19 emergency.
- E-Verify Update: While E-Verify employers must still complete E-Verify for new employees within 3 business days of the hire date, DHS has released new guidance to extend the timeframe for employees to resolve certain Tentative Non-Confirmations (TNCs). This guidance provides employees more time to resolve TNCs because of the closure of Social Security and other public offices. Employers may not take any adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status. More details are available here.
- On March 26th E-Verify indicated they will releasing updated Q and As addressing questions dealing the National Emergency. The first issue addresses the impacts caused by the COVID-19 crisis, when State Driver Licenses and Identification Cards are expiring and employees are unable to renew them due to closures or limited services at driver’s license and ID-issuing agencies.
Q: Many states are extending the expiration date of state IDs and/or driver's licenses. How should the extension be documented in Section 2?
A. If the employee's state ID or driver's license expired on or after March 1, 2020, and the document expiration date has been extended by their state due to COVID-19, then it is acceptable as a List B document for Form I-9. Enter the document's expiration date in Section 2 and enter "COVID-19 EXT" in the Additional Information field. Employers may also attach a copy of the state motor vehicle department’s webpage or other notice indicating that their documents have been extended.
Updates from the U.S. Department of State
- Consular Posts Cancel Nonimmigrant and Immigrant Visa Appointments: The U.S. Department of State has cancelled all routine immigrant and nonimmigrant visa applications at all U.S. consular posts. U.S. embassies and consulates will continue to provide emergency and mission critical visa services, including providing services to U.S. citizens abroad. For those impacted by visa appointment cancellations, the Machine Readable Visa fee will remain valid and may be used for a visa appointments in the country where it was purchased within one year of the date of payment.
Seyfarth expects lengthy wait times once normal operations resume for nonimmigrant and immigrant visa appointments. Some countries may be impacted more than others, such as China, where visa appointments have been cancelled since early February. Those that are able to re-schedule their appointments should likely proceed, understanding that new appointment dates may still be cancelled, depending on the COVID-19 outbreaks in specific countries. Please see our detailed guidance here.
- April Visa Bulletin: The U.S. Department of State (DOS) has released the April 2020 visa bulletin. USCIS will use the Final Action Date at this link for employment-based adjustment of status applications in April. Charlie Oppenheim, Chief of the Visa Control and Reporting Division at DOS, does not predict much movement in the second and third preference categories in the months ahead. However, he does expect EB-1 Worldwide to advance and perhaps become current in the months ahead, which could also potentially benefit the current backlog for EB-1 India.
Updates from the U.S. Department of Labor
- H-1B Labor Condition Applications (LCAs): If posting physical LCA notices, the LCAs must be posted on or before the day the H-1B worker begins work at the new worksite location. Based on temporary interim guidance, the DOL will consider physical LCA postings to be 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).
Please see Seyfarth’s guidance on H-1B LCA postings here.
- PERM Recruitment and Notice of Filing Requirements: The Department of Labor has released interim guidance that the DOL 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 Sept. 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. On a similar note, the DOL is allowing employers to post the Notice of Filing within 60 days after the deadlines have passed, provided that the employer initiated recruitment within the 180 day period prior to March 13, 2020. Please see Seyfarth’s guidance on this topic here.
- 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. To file the I-140 petition, USCIS will consider a printed version of the Form ETA-9089, containing all signatures, as satisfying the requirement that petitioners provide evidence of an original labor certification issued by DOL.
Seyfarth Shaw will issue subsequent alerts as further changes develop.