The Impact Of COVID-19 On Business Immigration

Tonkon Torp LLP

Tonkon Torp LLP

COVID-19 is rapidly affecting business immigration in multiple ways. Below is an outline of key impacts to date. Please contact the attorneys in the Immigration and Labor & Employment practice groups for additional information.

International Travel

  • Most U.S. embassies and consular posts have temporarily suspended visa services.
  • The U.S. borders with Canada and Mexico are generally closed to travel.
    • Some exceptions include:
      • U.S. citizens and lawful permanent residents returning to the U.S.
      • Individuals traveling to work in the U.S., or engaged in lawful cross-border trade (transportation of goods)
      • Individuals traveling to attend school or receive medical treatment
  • Inbound travel suspended for individuals recently present in China, Iran, much of Europe (26 European countries), Ireland, and the United Kingdom.
    • This list may change over time.
    • Applies to individuals present in these regions over past 14 days (not based on citizenship).
    • Does not apply to U.S. citizens and permanent residents
      • But will need to self-quarantine for 14 days upon return
    • International inbound flights from subject countries may only arrive at specifically designated U.S. airports.
  • For any travel, outbound or inbound, it is critical to confirm country restrictions , which vary widely and are changing by the hour.
    • Department of State currently advises that all international travel is not recommended for U.S. citizens, and that U.S. citizens abroad should repatriate immediately or be prepared to remain in place.

USCIS Processing

  • Premium processing has been temporarily suspended effective immediately.
    • Requests accepted by USCIS before March 20 will be premium processed.
    • Impacts processing of all Form I-129 nonimmigrant temporary worker petitions like H-1B, L-1, and O-1 petitions, as well as certain I-140 immigrant worker petitions.
    • Impacts H-1B cap cases and supersedes a prior announcement regarding a phased-in approach to premium processing of H-1B cap cases.
    • It is uncertain when premium processing will resume.
    • Expedite requests may still be made in individual cases.
  • In-person services at local USCIS offices have been suspended until at least April 7.
    • Includes biometrics, in-person interviews.
  • Copies of original “wet” signatures on USCIS petitions and applications temporarily permitted in filings.
    • Originals must be maintained and can be requested by USCIS at a later date.

Maintaining Status: Visa Waiver Program (VWP)/ESTA Visitors

  • Individuals present in the United States as visitors pursuant to the VWP/ESTA who are nearing the end of their authorized period of stay who are unable to depart the United States due to COVID-19 may be able to seek an extension known as “Satisfactory Departure”.
    • Critical not to overstay authorized period of stay in United States.

Layoffs (Temporary and Permanent) and Reduction in Hours and Pay

  • PERM Labor Certification Applications
    • Layoffs may impact the labor market test.
    • Layoffs within the company seeking to apply on behalf of a foreign national may trigger the need to notify U.S. workers recently laid off from the company.
    • Best practice may be to stop certain applications.
  • H-1B, H-1B1, E-3, L-1, TN, and O-1 nonimmigrant categories
    • If terminated, some categories receive an automatic grace period of 60 days or status expiration date, whichever is earlier, starting from the last day of employment.
    • If terminated, some categories carry obligations to notify USCIS and withdraw petitions and Labor Condition Applications.
    • If reduction in hours and pay, some categories require filing amended petitions with USCIS.
    • Other requirements may apply.
  • Important: The impact of terminations and reduction in pay and hours have a significant impact on foreign national employees. Please contact the Immigration Practice Group for situation-specific advice.

Worksites/Remote Work: H-1B, H-1B1, E-3 Employees

  • If employees in H-1B, H-1B1 (Chile/Singapore), or E-3 (Australian) specialty occupation status will shift to remote work from home, the posting of the DOL certified Labor Condition Application (LCA) must be posted at any new worksite – including working from home – within the metropolitan statistical area/commuting distance from the approved worksite(s).
    • A new worksite outside the metropolitan statistical area may trigger the need for a new LCA and an amended petition filing with USCIS.

Form I-9 and E-Verify

  • Form I-9. For employers that have transitioned entirely to remote operations/worksites, employers completing Section 2 or Section 3 of Form I-9 may temporarily review original identity and work authorization documentation remotely rather than in person for the I-9 hiring and reverification processes. Employers must complete in-person verification once normal operations resume.
  • Form I-9 Notices of Inspection. ICE has provided an automatic 60 day extension to any ICE Notices of Inspection of Forms I-9 issued in March 2020.
  • E-Verify.
    • DHS has extended the amount of time individuals are typically provided to resolve SSA related “tentative non-confirmations” in the hiring processes due to SSA office closures (adverse action cannot be taken against employees during interim case status).
    • E-Verify and I-9 processes are still required to timely be performed; if E-Verify cannot be performed within the required 3-day period due to COVID-19, an annotation may be made in the system regarding COVID-19 delay.

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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