We are all being bombarded hourly now with information and advice about how to deal with the myriad issues and problems arising internationally, nationally and locally as a result of the coronavirus (COVID-19) outbreak. All of that information is relevant today, but perhaps only a portion of it relates directly to your personal circumstances or to your business.
The goal of this E-lert is to provide information about how the coronavirus 2019 (COVID-19) outbreak has affected aspects of your and your business’s Immigration world– from changes in the processing of petitions and visas, to Form I-9 and E-Verify employment eligibility verification, and even to travel restrictions. We want to provide the information that we think could be important to you or your business in as succinct a format as possible so that you can review it quickly and then consider whether you need to know more.
If any questions arise after your review of this E-lert, then please do contact your GrayRobinson attorney with whom you have been working, or contact Nicolas Watkins at GrayRobinson directly.
United States Citizenship and Immigration Services (USCIS)
USCIS continues to process and adjudicate visa petitions and applications as usual. However, as of March 18, USCIS offices are closed to the public and will reopen on April 7 unless the public closures are extended further. USCIS has suspended all in-person services, including residency, naturalization and asylum interviews, biometrics collection appointments, InfoPass appointments, and citizenship ceremonies. USCIS will notify affected applicants of the cancellations and will re-schedule their appointments and interviews for a later date when able to do so. Further, only today USCIS has stated that responses to Requests for Evidence (RFEs) or Notices of Intent to Deny (NOIDs) received by petitioners or applicants between March 1 and May 1 “will be considered” if submitted by petitioners and applicants within 60 calendar days after the applicable response deadline identified in the RFE or NOID. This sounds like a 60-day extension for responses to RFEs and NOIDs.
The H-1B registration period for the 2021 fiscal year (starts October 1, 2020) closed at Noon on March 20. USCIS will randomly select sufficient registrations to reach the H-1B numerical allocations and notify those employers selected via their online USCIS accounts no later than March 31. Chosen employers will then be able to file an H-1B cap-subject petition for the beneficiary named in the selected registration within the filing period provided by USCIS at the time of selection. The filing period will be at least 90 days.
If you are an employer with a selected H-1B registration and need help filing your H-1B petition, contact your GrayRobinson attorney with whom you have been working or contact Nicolas Watkins at GrayRobinson directly.
As of March 20, USCIS has suspended Premium Processing for all Form I-129 nonimmigrant petitions for Form I-140 immigrant petitions “until further notice.” This includes E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-1 and TN-2 nonimmigrant petitions as well as EB-1, EB-2 and EB-3 Form I-140 immigrant petitions filed in the EB-1, EB-2 and EB-3 immigrant categories. USCIS will refund Premium Processing fees to those employers who have already filed petitions under the Premium Processing program, but who receive no agency action within 15 days of filing.
As of March 21, USCIS will now accept scanned (not e-signatures), faxed or photocopies of signatures on all benefit forms, petitions/applications and other documents as long as the document is a copy of an original document that has the original of the reproduced handwritten signature on it. This temporary change is to last for the “duration of the National Emergency.” The original signed document should be kept for audit response purposes.
ESTA/Visa Waiver Periods of Admission
For those visitors present in the United States as visitors without a visa pursuant to ESTA and the Visa Waiver Program, the law does not strictly speaking permit extensions of stay. However, “satisfactory departure” might be permitted if a visitor cannot return home before the end of his/her period of authorized stay due to the coronavirus pandemic. With satisfactory departure, the visitor will not then be considered to have overstayed the authorized period of stay if he/she departs the United States within the period of satisfactory departure. Satisfactory departure requests are considered on a case by case basis, the procedures for them depend on the port of entry or the local USCIS or CBP office, and in any event satisfactory departure may not be granted for more than 30 days.
Beware: Overstaying an authorized period of stay can prevent future re-entry into the United States. Contact your GrayRobinson attorney with whom you have been working or contact Nicolas Watkins at GrayRobinson directly if you need advice regarding, or assistance with, requests for satisfactory departure.
Department of Homeland Security (DHS)
I-9 and Employment Verification
DHS has implemented an exception to the Form I-9 Employment Eligibility Verification compliance process for employers who have employees working remotely due to COVID-19. As of March 20, 2020, and for 60 days thereafter, or within 3 business days of the termination of the National Emergency, whichever is earlier, employers with employees taking “physical proximity precautions” due to COVID-19 may review the new employee’s identity and employment authorization documents remotely when onboarding – via video link, fax or email, etc. Certain conditions apply, with in-person verification of identity and employment eligibility documentation and further annotations on the Form I-9 being required within 3 business days of resumption of normal business operations. Employers have the burden of compiling written documentation of their remote onboarding and telework policy for each employee verified remotely.
Note that this exception does not apply if there are employees physically present at a work location, even if other employees work remotely. DHS will evaluate situations where newly hired or existing employees are subject to COVID-19 quarantine or lockdown protocols on a case-by-case basis.
E-Verify has extended the timeframe for taking action to resolve Social Security Administration (SSA) Tentative Nonconfirmations (TNCs) due to SSA office closures to the public. E-Verify is also extending the timeframe to take action to resolve Department of Homeland Security (DHS) TNCs in limited circumstances when an employee cannot resolve a TNC due to public or private office closures. Usually an employee must visit the local SSA or DHS office within eight federal government workdays of the TNC. However, now that SSA and DHS offices are closed, the employee need not visit the DHS or SSA office and try to resolve the TNC until the SSA and/or DHS offices have re-opened. In the interim, the E-Verify case will be in an extended interim status. Employers are reminded that (i) they are still required to create new E-Verify cases for their new employees within three business days of the date of hire, (ii) they must notify the employee about the TNC result as soon as possible, and (iii) they may not take any adverse action against employees while their cases are in interim status, including extended interim status due to COVID-19.
Department of State (DOS)
Visa Processing at Embassies and Consulates
As of March 20, the Department of State suspended all in-person residency interviews and other routine visa appointments. Routine visa services will resume “as soon as possible.” U.S. embassies and consulates worldwide are operating to provide “emergency and mission critical visa services” as resources permit. However, services for U.S. citizens overseas remain available.
All international travel should be avoided.
Entry into the United States
Foreign nationals who have visited one of the following countries during the 14-day period preceding their entry or attempted entry into the United States may not enter the United States:
China, Iran, the European Schengen area (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland, and, de facto, Monaco, San Marino, Vatican City), United Kingdom (England, Scotland, Wales, & Northern Ireland), and the Republic of Ireland.
Depending on their travel history, U.S. citizens and lawful permanent residents returning to the United States will be asked to stay home for a period of 14 days from the time they left an area with “widespread or ongoing community spread of the corona virus.” Those countries considered to have a widespread and ongoing transmission of the virus are: Australia, Brazil, Canada, Chile, Ecuador, India, Indonesia, China, countries in the Schengen Area in Europe (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and Switzerland), and, de facto, Monaco, San Marino, Vatican City), Iran, Ireland, Israel, Japan, Malaysia, Pakistan, Philippines, Qatar, Romania, Russia, Saudi Arabia, Singapore, South Africa, South Korea, Thailand, Turkey, United Kingdom (England, Scotland, Wales, and Northern Ireland).
On a lengthy list of individuals exempt from the travel ban are U.S. citizens and lawful permanent residents and their families (children must be unmarried and under 21), as well as certain foreign government and health officials, members of the U.S. Armed Forces and their families, and air and sea crew members entering on C-1, D or C-1/D visas.
Mexico and Canada
Effective March 21, 2020, the Unites States has reached agreements with both Canada and Mexico to limit all non-essential travel across our north and south borders. This affects tourism and recreational travel only; essential commercial activity is not impacted and supply chains, including trucking, will be maintained. The restrictions do not affect those Americans and Canadians who cross the borders daily to perform essential work, and they apply to the north and south land borders only for a period of 30 days, subject to extension upon review.
Department of Labor (DOL)
Employment Certification Application (PERM) Processing
As of March 25, DOL will send PERM labor certification documents electronically to employers and their authorized attorneys or agents and will not, therefore, use the U.S. Postal Service. This, combined with USCIS’s recent move away from wet, handwritten signatures will help employers receive final decisions on their employment applications in a timely manner.
DOL has said that it will make “reasonable accommodations” in the form of extensions of time and deadlines if needed by employers affected by the COVID-19 pandemic when responding to requests for information and other documentation in connection with prevailing wage determination requests and employment certification applications. In particular, the Department of Labor has granted employers an additional 60 days to complete the mandatory recruitment requirements and file the PERM application, as long as the employer initiated its recruitment between September 15, 2019, and March 13, 2020, and filing of the application for employment certification occurs no later than May 12, 2020.
COVID-19 is a moving target. The Immigration world is constantly changing as a result. Legal issues are arising daily. Rest assured that we at GrayRobinson are closely monitoring the impact of the pandemic and are responding to all immigration and other issues affecting our clients as they arise. We are here to help; let us know if you need us.