MT IMMIGRATION UPDATES: COVID-19

Information contained here is a service to our clients and friends that is provided for informational purpose only and is not intended to constitute advertising, solicitation, or legal advice.

Updated July 9, 2020 (10:00 a.m. PDT)

Many countries are taking measures that impact immigration in order to contain the spread of the novel coronavirus including travel restrictions, reduction or suspension of immigration related services, and health screenings at ports of entries.

The Immigration Team at Minami Tamaki LLP is closely monitoring the immigration development related to the outbreak of the novel coronavirus (COVID-19) and will keep this page updated with new developments. Employers should work quickly to identify employees who are affected by the fast changing conditions and contact us to review the impact and options.

BREAKING NEWS

June 22, 2020 Presidential Proclamation Banning Entry for H-1B, H-2B, L-1, and J-1 Holders

On June 22, 2020, President Trump issued a proclamation temporarily suspending the entry into the U.S. of certain nonimmigrants, specifically, individuals who do not possess H-1B, H-2B, L-1 and J-1 visas.  This order also extends Executive Order 10014, which suspended the entry of immigrant visa holders.

This proclamation is effective as of 12:01 a.m.  ET on June 24, 2020 and will remain in effect until December 31, 2020. The President has the authority to extend this proclamation beyond this date. Below, please find a summary of the proclamation and MT’s perspectives.

  1. What does this proclamation do?
    1. Suspends entry to the U.S. for H-1B, H-2B, L-1, and J-1 visa holders who are outside the U.S. and who do not possess a valid visa as of June 24, 2020 to enter the U.S.
    2. Suspends entry to the U.S. of dependents of H-1B, H-2B, L-1, and J-1 visa holders (e.g. H-4, L-2, and J-2) who do not possess a valid visa as of June 24, 2020.
  2. Who is impacted?
    1. Foreign Nationals, who 1) are outside of the U.S. and 2) do not currently have a valid H-1B, H-2B, L-1 or J-1 visa in their passport and their dependent family members.
    2. This proclamation specifically impacts:
      1. Individuals who were chosen in the H-1B lottery this year but are outside the U.S. and who will need an H-1B visa to enter the U.S.
      2. New hires who are currently outside the U.S. and need H-1B, H-2B, L-1 or J-1 visa to enter the U.S.
      3. Dependent family members of H-1B, H-2B, L-1 and J-1 visa holders who do not yet have a visa in their passport
      4. H-1B, H-2B and L-1 status holders who wish to travel outside the U.S. after the visa in their passport expires.
  3. Who is NOT impacted?
    1. Individuals who already have an H-1B, H-2B, L-1, and J-1 visa that is valid as of June 24, 2020
    2. Dependent family members who already have a H-4, L-2, and J-2 visa that is valid as of June 24, 2020
    3. Lawful Permanent Residents
    4. Those who provide temporary labor essential to the U.S. food supply chain
    5. Any foreign national whose entry would be in the U.S. national interest
    6. Canadian nationals. Since Canadian nationals are visa exempt, those with H-1B, H-2B, and L-1 approval notices and J-1 visa program participants may apply for entry as usual.
    7. Holders of other work visas – H-1B1, TN, O-1, E-1/2/3 and other nonimmigrant visa that are not specifically mentioned in this proclamation.
    8. Holders of other travel document (e.g. a transportation letter or an Advance Parole Document) that are valid as of June 24, 2020 or issued thereafter.

MT Perspectives

  1. How should employers respond to employees’ questions?
    1. For foreign national employees who are in the U.S. – They are not directly impacted by this proclamation unless they need to travel internationally.
    2. For foreign national employees outside the U.S. – Employees who have a valid visa will be able to return to the U.S. Employees who do not have a visa will have to remain outside of the U.S. until the end of the year. There may also be tax and labor and employment legal consequences for having a full-time employee work outside the U.S. for an extended period of time. Please consult your corporate, tax, and employment legal counsel.

      MT recommends against any nonessential international travel even if a foreign national is not impacted by this proclamation. The global suspension of routine U.S. visa processing and various international travel restrictions and challenges remain in effect due to COVID-19.

  2. How is MT responding?
    1. MT will continue to monitor immigration developments closely and will share additional updates and analysis as soon as possible. MT Immigration Team is available for in-depth impact analysis and review for employees who are currently outside the U.S. or require international travel.

May 29, 2020 Presidential Proclamation Suspending the Entry of Certain Students and Researchers from the People’s Republic of China

On May 29, 2020, President Trump issued a proclamation to block certain Chinese nationals associated with entities in China that implement or support China’s “military-civil fusion strategy” from using F (student) or J (exchange visitor) visas to enter the United States.

The proclamation went into effect on June 1, 2020 at 12:00 P.M. (ET) and will remain in effect until terminated by the President. A specific termination date was not provided. Below, please find a summary of the proclamation and MT’s perspectives.

  1. What does this proclamation do?
    Suspends entry to the U.S. certain Chinese nationals associated with entities in China that implement or support China’s “military-civil fusion strategy” from using F (student) or J (exchange visitor) visas to enter the United States.
  2. What is “military-civil fusion strategy”?
    For the purposes of the proclamation, the term “military-civil fusion strategy” means actions by or at the behest of the People’s Republic of China (PRC) to acquire and divert foreign technologies, specifically critical and emerging technologies, to incorporate into and advance the PRC’s military capabilities.
  3. Who is impacted?
    PRC national graduate students and researchers in F and J status holders:
    1. who have had been associated with PRC’s “military-civil fusion strategy”; and
    2. who are outside the U.S. and are seeking F and J visa at the U.S. Embassies and Consulates to enter the U.S.; or
    3. who are in the U.S. with an expired F and J visa who need to travel outside the U.S. and must apply to renew F and J visa in order to return to the U.S.

      The proclamation also directs the Secretary of State to consider revoking F-1 or J-1 visas for PRC nationals who are currently in the U.S. if they would otherwise be subject to this proclamation.

  4. Who is NOT impacted?
    PRC nationals who are:
    1. Undergraduate students;
    2. Lawful permanent residents of the United States;
    3. A spouse of a United States citizen or lawful permanent resident;
    4. A foreign national who is a member of the United States Armed Forces and any foreign national who is a spouse or child of a member of the United States Armed Forces;
    5. A foreign national whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement (such as a PRC U.N. representative or expert performing a U.N. mission) or who would otherwise be allowed entry into the United States pursuant to United States obligations under applicable international agreements;
    6. A foreign national who is studying or conducting research in a field involving information that would not contribute to the PRC’s military-civil fusion strategy, as determined by the Secretary of State and the Secretary of Homeland Security, in consultation with the appropriate executive departments and agencies;
    7. A foreign national whose entry would further United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee; or
    8. A foreign national whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees. Fraud: Any foreign national who willfully misrepresents a material fact, seeks to circumvent the proclamation through fraudulent means, or enters the United States illegally will be deemed a priority for removal by the Department of Homeland Security. Asylum Seekers

 MT Perspective

  1. How should employers respond to employees’ questions?
    F and J status holders who are currently in the U.S. and who do not need to travel internationally or who hold valid F and J visa stamps are not impacted regardless of their level or field of studies. H-1B workers are not impacted by this proclamation.
    The global suspension of routine U.S. visa processing and various international travel restrictions and challenges remain in effect due to COVID-19. Therefore, the impact of this proclamation is somewhat limited. If the Dept. of State resumes visa processing and this proclamation remains in effect, this allows wide discretion to visa officers to deny or place applications in an administrative processing which may cause significant delay in visa processing.
  2. How is MT responding?
    MT will continue to monitor immigration developments closely and will share additional updates and analysis as soon as possible.

April 22, 2020 Presidential Proclamation Suspending Entry of Certain Immigrants to the U.S.

  • Effective on April 23, 2020 at 11:59 PM (ET), the proclamation suspends the entry of any individual seeking to enter the U.S. as an immigrant who:
    • Is outside the United States on the effective date of the proclamation;
    • Does not have a valid immigrant visa on the effective date; and
    • Does not have a valid official travel document (such as a transportation letter, boarding foil, or advance parole document) on the effective date, or issued on any date thereafter that permits travel to the United States to seek entry or admission.
  • Nonimmigrant visa holders, such as H-1B, TN, E-3 workers or F-1 students and their dependent family members, are NOT included in this proclamation.
  • The proclamation does NOT apply to the following individuals:
    • S. Lawful permanent residents
    • Individuals and their spouses or children seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional to perform work essential to combatting, recovering from, or otherwise alleviate the effects of the COVID-19 outbreak (as determined by the Secretaries of State and Department of Homeland Security (DHS), or their respective designees)
    • Individuals applying for a visa to enter the U.S. pursuant to the EB-5 immigrant investor visa program
    • Spouses of U.S. citizens
    • Children of U.S. citizens under the age of 21 and prospective adoptees seeking to enter on an IR-4 or IH-4 visa
    • Individuals who would further important U.S. law enforcement objectives (as determined by the Secretaries of DHS and State based on the recommendation of the Attorney General (AG), or their respective designees)
    • Members of the U.S. Armed Forces and their spouses and children
    • Individuals and their spouses or children eligible for Special Immigrant Visas as an Afghan or Iraqi translator/interpreter or U.S. Government Employee (SI or SQ classification)
    • Individuals whose entry would be in the national interest (as determined by the Secretaries of State and DHS, or their respective designees).
  • The proclamation also requires that within 30 days of the effective date, the Dept. of Labor, and Dept. of Homeland Security, in consultation with the Dept. of State, shall review nonimmigrant programs and recommend appropriate measures to “stimulate the U.S. economy and ensure the prioritization, hiring and employment of U.S. workers.”
  • The proclamation expires 60 days from its effective date but may be extended as necessary. Within 50 days from the effective date, the Secretary of DHS shall, in consultation with the Secretaries of State and Labor, recommend whether the President should continue or modify the proclamation.

MT’s perspectives on the April 22, 2020 Presidential Proclamation

  • USCIS will continue processing applications and petition for temporary workers (such as H-1B and F-1 OPT and STEM OPT) and other nonimmigrant and immigrant visa categories including I-140 immigrant petitions and adjustment of status applications for now.
  • Due to the COVID-19 pandemic, the U.S. has already suspended routine visa services at the U.S. consulates worldwide and in-person immigration appointments at USCIS offices, as well as restricted non-essential travel along the U.S.-Canada and U.S.-Mexico borders. The proclamation does not expand the restrictions that have already been placed as a result of the pandemic.
  • The prior travel bans from individuals who have been in the following countries at least 14 days prior to entry remain in effect: China, Iran, the Schengen Area, the U.K., and Ireland.
  • The proclamation may be challenged in the court system.
  • MT continues to monitor immigration developments closely and will share additional updates and analysis as soon as possible.

Dept. of Homeland Security

USCIS

    • June 1: I-140: EB-1, EB-2 and EB-3
    • June 8: H-1B cap-exempt petitions and all other nonimmigrant petitions filed before June 8
    • June 15: H-1B petitions filed by cap-exempt employers (e.g. institutions of higher education, nonprofit research organizations or government research organizations)
    • June 22: All remaining eligible nonimmigrant petition types including cap-subject H-1B petition aka Fiscal Year H-1B “lottery” cases

  • No “Wet” Signature Required during COVID-19 National Emergency
    Effective March 21, 2020, USCIS will NOT require original signatures on filings during COVID-19 National Emergency.
      • USCIS will accept reproduced original signatures. A document may be scanned, faxed, photocopied, or similarly reproduced provided that it is a copy of an original document containing an original handwritten “wet” signature. Docusign is not acceptable.
      • The original documents containing the “wet” signature must be retained. USCIS may, at any time, request the original documents for inspection.
  • In-person appointments cancelled
    Effective March 17, 2020, USCIS has suspended all routine in-person appointments. Cancelled appointments will be rescheduled. An emergency appointment may be scheduled by contacting the USCIS Contact Center. For the current information on office closure, please visit the USCIS website.
    USCIS is continuing operations that do not involve contact with the public.

CBP

  • Canada-United States-Mexico (NAFTA) update

    Effective on July 1, 2020, the North American Free Trade Agreement (NAFTA) was replaced by the United States of America, the United Mexican States, and Canada Agreement (USMCA). The NAFTA nonimmigrant Trade National (TN) visa allowed citizens of Canada and Mexico to work in the United States in prearranged business activities for U.S. or foreign employers. The USMCA TN visa will function much the same way as the TN Visas did under NAFTA. The types of professionals who are eligible to seek admission as TN nonimmigrants remains the same under USMCA.

ICE

On July 6, 2020, ICE announced that it was rescinding its COVID-19 exemption for international students. The Temporary Procedural Adaptations released by ICE is effective for the fall 2020 semester and requires all students on F-1 visas whose university curricula are entirely online to depart the country and prevents students currently outside the United States from entering or reentering the country. In addition, designated school officials (DSOs) must issue new Forms I-20 to each student certifying that the school is not operating entirely online, that the student is not taking an entirely online course load for the fall 2020 semester, and that the student is taking the minimum number of online classes required to make normal progress in their degree program. The enforcement of the July 6th Directive is currently being challenged in courts, the result of which may alter the impact of this new rule on F-1 students. 

Dept. of Labor

DOL keeps its website updated with any changes to the PERM program.

  • Beginning 3/25/2020 to 06/30/2020, DOL will send certified PERMs and final determination letters via email.
  • DOL will communicate via email.
  • DOL will grant extensions to deadlines for employers and/or their authorized attorneys affected by COVID-19 and disruption of normal business operations as a result of the pandemic.
    • COVID-19 PERM filing date extensions
      If the employer began mandatory recruitment on or after September 15, 2019, DOL will a grant 60 day extension to file PERM to provide employers additional time to complete the mandatory recruitment.
      Delayed recruitment conducted in conjunction with the filing of an application for permanent labor certification must have started on or after September 15, 2019, and the filing must occur by May 12, 2020.
    • Physical Posting Requirement for PERM Notice of Filing
      Physical posting requirement remains in effect. However, DOL has provided additional 60 days to post in limited circumstances.
      Employers may post Notice of Filing (also known as “In-House Posting”) within 60 days after the deadlines have passed provided that other forms of recruitment began on or after September 15, 2019.

U.S. Consular Processing Suspended Worldwide

As of March 20, 2020, the Department of State has suspended routine visa services in all countries worldwide.  U.S. citizen services and emergency services remain available. For more info, please visit here.  The Department of State’s website maintains COVID-19 related information for the U.S. consular post in each country.

Foreign Nationals Who are Unable to Depart the U.S. due to COVID-19

Foreign nationals who are unable to depart due to COVID-19 should seek counsel before the expiration date.

  • ESTA/Visa Waiver
    • ESTA/Visa Waiver participants who were admitted through New York JFK International Airport and Newark Liberty International Airport and who are not able to depart the U.S. due to emergent circumstances before their expiration date may contact the JFK CBP Deferred Inspection Office to request a Satisfactory Departure for up to 30 days. The request must be made before the current expiration date. If granted, the individual will not be considered to have violated his/her stay during the additional period.
    • As of March 17, 2020, JFK CBP has proactively announced that it will consider COVID-19 related requests made for up to 14 days before the status expiration date.
    • CBP maintains the authority to grant a Satisfactory Departure at its discretion for various emergent reasons pursuant to 8 CFR 217.3(a).
    • For the full list of CBP Deferred Inspection Sites, please visit here.

U.S. TRAVEL RESTRICTIONS

  • US-Mexico/ US-Canada Border Closure
    The U.S. has entered into mutual agreement with Mexico and Canada to suspend non-essential travel across their borders. Effective March 21, 2020, this restriction does not affect air travel and applies to land border crossing and passenger rail and ferry travel.

    Essential travel and legitimate trade activities are to continue. Essential travel includes but is not limited to:

    • S. citizens and lawful permanent residents returning to the U.S.
    • Travelling for medical purpose
    • Travelling to attend educational institutions
    • Travelling to work
    • Travelling for emergency responses and public health purpose
    • Lawful cross-border trade (e.g. truck drivers)
    • Official government or diplomatic travel
    • S. Armed Forces and their spouses and children
    • Military-related travel

As of April 20, 2020, the border closure for non-essential travel has been extended for additional 30 days.

  • Presidential proclamations — COVID-19 Travel Ban
    There have been Presidential proclamations instituting a travel restriction due to the COVID-19 outbreak. These proclamations direct the United States to stop admitting foreign nationals who were physically present in the designated country(ies) during the 14-day period immediately prior to arrival in the U.S.
    • Europe – The Schengen Area, UK, and Ireland
      Effective 11:59 PM on March 13, 2020, eastern daylight time, the Schengen area is affected. includes 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. On March 14, 2020, the U.S. included the United Kingdom and Ireland in this ban.
    • Iran
      Since March 2, 2020, the COVID-19 travel ban is in effect for foreign nationals who were physically present in Iran.
    • People’s Republic of China
      Since February 2, 2020, the COVID-19 travel ban is in effect for foreign nationals who were physically present in People’s Republic of China. Hong Kong and Macau are exempt.

The COVID-19 travel ban for the U.S. does not apply to passengers on board a flight that departed before the effective date of the ban. It also does not apply to U.S. citizens; lawful permanent residents of the United States; spouses of U.S. citizens or lawful permanent residents; parents or legal guardians of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21; siblings of a U.S. citizen or lawful permanent resident, provided that both are unmarried and under the age of 21; children, foster children, or wards of U.S. citizens or lawful permanent residents, or prospective adoptees seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications; and a limited category of foreign nationals.

As of March 13, 2020, flights from the affected countries are directed to one of 13 designated airports in the U.S.

Situations remain fluid, and each country may have its own restrictions.  Authorities are recommending against non-essential travel. Please refer to the Dept. of States’ travel advisories for the most up-to-date travel warnings and information on travel risks.

GLOBAL TRAVEL RESTRICTIONS

Countries around the world have placed travel restrictions in order to contain the spread of the novel coronavirus. For updated information on each country, please visit the U.S. Department of States’ COVID-19 specific information page.

Notably, Canada has announced strict travel restrictions effective March 18, 2020.  Canadian citizens, Canadian permanent residents, immediate family members of Canadian citizens, diplomats, airline crew members are exempt.

  • Land Borders
    US Citizens, green card holders or those that have a visa in hand can be considered to be “non-essential travel” and may be barred entry. US citizens may also be barred from entry if they have been in a recent hot spot in the past 14 days or if they show symptoms upon arrival. 
  • Air Carriers
    Air carriers are to deny boarding to any passenger who is not a Canadian citizen, Canadian permanent resident or an immediate family member.

The New York Times’ March 16, 2020 article provides a summary of current global travel restrictions.

CONSIDERATIONS FOR U.S. IMMIGRATION PROGRAM MANAGEMENT AND COMPLIANCE

  • Labor Condition Application Electronic Posting
    If your office is closed, employers can meet the notice requirement by posting the LCA electronically in a manner that complies with the Dept. of Labor guidance. LCAs are required for H-1B, E-3, and H-1B1 filings.

    For electronic notice, employers may use any means ordinarily used to communicate with employees about job openings, including its website, electronic newsletter, intranet, or email. For direct notice such as email, notification is required only once and does not need to be repeated daily for 10 calendar days.

  • Remote I-9 and E-Verify Employment Authorization Verification
    Effective March 20, 2020, the Department of Homeland Security (DHS) will defer the physical document inspection requirement for 60 days or within 3 business days after the termination of the National Emergency, whichever comes first.

    This exception applies only to those employers who are operating remotely. If there are employees physically present at a work location, no exceptions are being made at this time for in-person verification.

    DHS recommends employers, who wish to avail themselves of the remote option, to take the following steps:

    1. Inspect the Section 2 documents remotely (e.g., over video link, fax, or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2.
    2. Once normal operations resume, physically inspect and retain copies of documents within three business days.
    3. Enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.
    4. Note “documents physically examined” with the date of physical inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.
    5. Provide written documentation of their remote onboarding and telework policy for each employee.

If new hires or existing employees are subject to COVID-19 quarantine or lockdown, DHS will evaluate on a case-by-case basis. Any audit of subsequent Forms I-9 would use the “in-person completed date” as a starting point for these employees only.

  • COVID-19 Exclusive Telecommuting for an Extended Period of Time
    If the H-1B, H-1B1, or E-3 worker’s worksite will change and the new worksite is within normal commuting distance, the company must post the LCA at the new worksite on or before the H-1B beneficiary’s first day of employment at the new worksite.

    Employers with an approved LCA may move workers to other worksite locations which were unintended at the time of filing the LCA, such as home offices, without needing to file a new LCA, provided that the worksite locations are within the same area of intended employment covered by the approved LCA.  The employer must provide either electronic or hard-copy notice at those worksite locations meeting the requirements, and for 10 consecutive calendar days, unless direct notice is provided, such as an e-mail notice, to employees.

    By law, notice is required to be provided on or before the date any worker on an H-1B, H-1B1, or E-3 visa employed under the approved LCA begins work at the new worksite location.  However, because the Dept. of Labor acknowledges employers affected by the COVID-19 pandemic may experience various service disruptions, the notice will be considered timely when placed as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite location, such as home offices within normal commuting distance from the worksite address listed on the LCA.

    Employers with an approved LCA may also move H-1B, H-1B1, or E-3  workers to unintended worksite locations outside of the area(s) of intended employment on the LCA using the short-term placement provisions.

    Please inform MT attorneys right away if this type of worksite relocation has occurred.

     

  • J-1 Exchange Visitor Program

    The Dept. of Statue recommends private sector program sponsors to postpone all program start dates for 60 days after March 12, 2020.

  • J-1 Interns and telecommuting

    There is no formal guidance from the Dept. of State as of March 12, 2020. Regulations require J-1 interns and trainees to work on-site under a supervisor.  We have consulted with the Department of State approved J-1 visa sponsors who have shared that they may allow telecommuting for a short period of time during a pandemic or other unique circumstances. What is considered a short period of time may differ among J-1 sponsors. Not all J-1 sponsors may approve telecommuting. Employers and J-1 status holders should contact the specific J-1 visa sponsor for guidance. The J-1 visa sponsor information is listed on Form DS-2019.

    If the J-1 sponsor will telecommute, the following is recommended:

    • There should be daily check-in’s between the J-1 supervisor and the J-1 intern – this can be through email, phone call, slack, etc.  There should be an established method of how the J-1 supervisors will conduct the daily check-in’s with their J-1 interns.
    • If the J-1 supervisor is out sick for an extended period of time, the J-1 status holder should contact the J-1 visa sponsor which will review the situation and determine whether the J-1 database needs to be updated.
    • If a J-1 intern has contracted COVID-19, please notify MT and the J-1 visa sponsor.