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.
- 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.
- 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.
- 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.