COVID-19 Immigration News Summary
We provide the following summary of recent developments related to COVID-19 in the immigration area:
- Executive Order – Temporary Suspension of “Immigrant Visas.”
- Effective April 23, 2020, the U.S. government will suspend processing for Permanent Residence status (“Green Card” processing) for a period of 60 days for individuals outside the U.S. The Executive Order indicates there may be another possible extension of same, and includes certain exclusions for healthcare professionals and others. As a practical matter, there is little or no impact at this time, due to all U.S. Consulate/Embassy posts worldwide remaining closed (see below).
All other petitions, including H-1B/L-1A/L-1B/TN/E-3, and other visa categories, may still be submitted to U.S. Citizenship and Immigration Services (USCIS). PERM Applications (Permanent Labor Certifications), Form I-140/Immigrant Petitions and Form I-485/Applications to Adjust Status to Permanent Residence (“Green Card” Applications) may still be submitted to USCIS. Note, the Executive Order indicates that within 30 days, the government will review “nonimmigrant programs” (which includes H-1B/L-1A/L-1B/TN/E-3, and other visa categories) and possibly recommend “other appropriate measures.” This Executive Order, along with any future Executive Orders that may be issued, will most likely be challenged in court.
- Visa Delays/Travel Restrictions.
- Visa Delays. In light of the global COVID-19 virus pandemic, all U.S. Consulate/Embassy posts worldwide have cancelled nonimmigrant and immigrant visa appointments, and continue to remain closed.
- H-1B Visaholders
- Working From Home. As background, the H-1B category is designed for foreign professional workers holding a university degree, and it authorizes the foreign professional to work in the United States in a “specialty occupation.” As part of the H-1B visa program, the Department of Labor (DOL) requires all employers to post a copy of the Labor Condition Application (LCA) for a specified period in at least two conspicuous places at the location where the foreign national employee will be employed. The purpose of this posting is to place the “public” on notice that the employer is considering hiring (a) foreign national(s). In addition, H-1B employers must attest to certain issues regarding wages, working conditions, strikes, and notice to employees or their representatives relating to the LCA. While DOL has provided some flexibility and guidance related to office closures and/or working remotely in light of the COVID-19 pandemic, employers permitting H-1B visaholders to work remotely from home must still post such notice at the new work (“home”) location. Accordingly, employers with H-1B visaholders working remotely from home should reach out to immigration counsel to determine what steps, if any, may be required. Note that such steps may apply to other visa categories which also require a LCA, including E-3 and H-1B1 visaholders.
- LCA Posting. In lieu of hard copy notice posting, employers may post the LCA via electronic notice for the requisite period of time (10 days). For electronic notice, employers may use any means ordinarily used to communicate with its employees about job vacancies or promotion opportunities, including its website, electronic newsletter, intranet, or email. If employees are provided individual direct notice, such as by email, then notification is only required once and does not have to be provided for the requisite 10 days.
- USCIS Premium Processing – Temporary Suspension. As a reminder, for an additional government filing fee, USCIS will review certain petitions within 15 days under its Premium Processing service program. Effective March 20, 2020, USCIS temporarily suspended its Premium Processing program due to the COVID 19 pandemic. Petitions may still be submitted to USCIS, but it will not accept Premium Processing requests. At this point, USCIS standard processing timeframes will govern, until Premium Processing resumes.
- USCIS – Temporary Closure of Certain Offices. In an effort to protect employees and communities, USCIS field offices, asylum offices, and Application Support Centers, will remain closed until June 3, 2020. This includes those offices providing for biometric/fingerprint appointments. As noted above, all other petitions, including H-1B/L-1A/L-1B/TN/E-3, and other visa categories, may still be submitted to USCIS. PERM Applications (Permanent Labor Certifications), Form I-140/Immigrant Petitions and Form I-485/Applications to Adjust Status to Permanent Residence (“Green Card” Applications) may also still be submitted to USCIS.
- USCIS Flexibility in Submitted Required Signatures. Effective March 21, 2020, for forms that require an original “wet” signature, per form instructions, USCIS will accept electronically reproduced original signatures for a temporary period of time. Generally, this means that a document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy must be of an original document containing an original handwritten signature. In such instances, employers should retain such original documents; USCIS may, at a later date, request the original documents, which if not produced, could negatively impact the adjudication of the immigration benefit.
- I-9 Compliance. As background, employers are required to complete and retain a Form I-9, Employment Eligibility Verification, for each individual hired in United States. In light of the COVID 19 pandemic, Department of Homeland Security (DHS) has announced flexibility in certain requirements, including permitting remote inspection of identity and employment authorization documents. DHS guidelines will allow for remote physical inspection of Section 2 I-9 documents, with certain procedures and steps to be followed (such as indication of remote inspection due to COVID 19, and evidence of company telework policy in light of current circumstances). If I-9 inspection is conducted remotely, employers must follow-up with physical inspection when normal operations resume.
As additional details become available regarding the above, we will provide regular updates.