Understanding Immigration Changes Imposed During the COVID Pandemic

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Holland & Hart - Employers' Lawyers

[co-author: Angelique Roy, Paralegal]

Over the last few months, you may have read about major travel restrictions for foreign workers entering the United States. What key facts do employers need to know?

Restrictions in response to COVID-19
Two presidential proclamations were issued that restrict U.S. entry and consular visa processing abroad until December 31, 2020:

  • As of April 23, immigrants are barred entry into the United States if they are outside the country without a valid green card or other official travel document. U.S. embassies also suspended issuing green cards (permanent residency) for applicants abroad. Note that the changes don’t affect individuals already in the country seeking green cards or other visas such as an H-1B through the domestic immigration agency, U.S. Citizenship and Immigration Service (USCIS).
  • H-1B, J-1, H-2B, and L-1 nonimmigrants (and their dependents) are barred from U.S. entry if they (1) were outside the United States on June 24 and (2) didn’t have a visa in the specified categories or other official travel document that was in effect on June 24, unless their work serves national interests (e.g., medical care and research for COVID-19 or facilitating U.S. economic recovery or essential to the U.S. food supply chain). Nonimmigrants already in H-1B1, E Trade Treaty, TN, O-1, and F-1 status lawful permanent residents aren’t affected.

Concurrently, various restrictions have been implemented for U.S. consulate visa processing and in countries worldwide for international travel (e.g., bans on discretionary travel or specific countries and mandatory quarantines). For instance, Europeans and Brazilians who aren’t U.S. citizens or permanent residents or family members of U.S. citizens are generally restricted from entering the country based on a presidential proclamation. The restrictions greatly affect nonimmigrant workers’ ability to travel internationally or apply for visas (e.g., E-3 visas) abroad to enter the United States.

Consequently, employer options to extend or change status and/or transfer employment for nonimmigrant workers are generally limited to seeking USCIS approval by submitting applications while present in the United States, which involves longer processing times, additional fees, and a higher level of scrutiny for adjudication and could potentially delay employment start dates.

For nonimmigrant extensions for certain visa types such as an H-1B or L-1 with the same employer, work authorization is automatically extended for up to 240 days after the I-94 expiration when a petition is submitted to USCIS before the I-94 expiration date. Such nonimmigrants can continue working while their extension petition is pending with USCIS.

Nonimmigrant petitions with a new employer require USCIS approval before work commences, and there is a 60-day grace period for an unemployed nonimmigrant to remain in the United States and obtain USCIS approval before accruing unlawful presence.

USCIS and DOL flexibilities
For submissions, USCIS will consider (1) accepting responses received at most 60 days after the stated deadline for requests for evidence, continuations to request evidence, and notices regarding intent to deny, revoke, or rescind issued between March 1 and September 11, 2020, and (2) excusing late nonimmigrant application submissions delayed by COVID-19 difficulties based on circumstances, including the length of delay and credibility of the supporting evidence.

USCIS also continues monthly extensions of relaxed I-9 verification “physical presence” requirements for Section 2 documents by permitting employers to remotely inspect (i.e., viewing a PDF of a driver’s license and Social Security card). This applies only to new hires who work remotely and doesn’t extend the traditional requirement of completing an I-9 Form within three business days.

For worksite changes, the U.S. Department of Labor (DOL) confirmed H-1B, H-1B1, and E-3 workers do not require new labor condition applications (LCAs) for unintended worksite changes to an existing LCA with no changes to employment terms and conditions if the new location is either within the same metropolitan statistical area (MSA) (typically the same county) or outside the MSA and short-term placement provisions apply. Employers must post notices at the location for 10 days before the employee starts working at the new location, such as working from home. The DOL will consider notices as timely, however, if posted as soon as practical, not exceeding 30 days after the worker starts at the new location.

DOL extension accommodations for PERM recruitments, filings, notice of filings, and responses based on pandemic difficulties ceased on May 12, 2020. The DOLwill review extension requests submitted per usual requirements by the deadline but won’t accept recruitment completed after the deadline lapses.

Conclusion
Although the restrictions imposed in response to COVID-19 greatly limit employer options for hiring foreign national talent, there are still ways to secure work authorization for new hires and maintain work authorization for current nonimmigrant employees in the United States.

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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