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.
MT IMMIGRATION NEWS – JANUARY 27, 2021
BIDEN REINSTATES COVID-19 TRAVEL BAN AND ADDS SOUTH AFRICA
- Effective January 26, 2021, President Biden reinstated a COVID-19 related restriction on travel from Brazil, Ireland, the UK and the Schengen Area. The Trump Administration had scheduled this ban to be lifted on January 26, 2021.
- Effective January 30, 2021, this travel ban will expand to include South Africa.
- This ban will remain in effect until it is terminated. The COVID-19 related ban on travel from China and Iran remain in place.
- Who is impacted?
Travelers, who were physically present in Brazil, Ireland, the UK, the Schengen Area and South Africa, China, and Iran in the past 14 days may not enter the U.S. unless the travelers meet certain exceptions or are exempt from the ban. For additional information, please visit the Department of State website.
BIDEN ADMINISTRATION ANNOUNCES REGULATORY FREEZE AND REVIEW
- The White House has requested that all federal agencies freeze the regulatory process on any Trump-era regulations that have not yet taken effect or been finalized.
- If the rules have been published but have not yet taken effect as of January 20, 2021, the White House has requested federal agencies to postpone the effective date to March 21, 2021.
- If the rules have not been published, they will be withdrawn.
- What does this mean?
It is common for the incoming Administration to freeze regulatory activities to review the previous Administration’s agency rules that are not yet in effect or finalized.
This freeze includes the recent DHS rule affecting the fiscal year H-1B cap case registration which prioritizes higher paid workers. It is possible that the agency may delay the effective dates further and/or the rule will be challenged in federal court. DHS has not yet made any announcements on this new rule since President Biden took office.
BIDEN ENDS TRUMP ERA TRAVEL BAN TARGETING PRIMARILY MUSLIM AND AFRICAN COUNTRIES
- On January 20, 2021, President Biden issued a presidential proclamation revoking travel bans targeting primarily Muslim-majority and African countries.
- Who is impacted?
Nationals of Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen will no longer face restrictions on nonimmigrant and/or immigrant visa issuance. Nationals of Eritrea, Kyrgyzstan, Myanmar (Burma), Nigeria, Sudan, and Tanzania will no longer be subject to immigrant visa restrictions.
- What does this mean?
Although the visa restrictions have been revoked, there are several restrictions on visa issuance and travel that remain in effect due to the COVID-19 pandemic. In addition, visa issuance is never guaranteed, as each applicant is subject to background check and vetting.
DOL PROCESSING TIMES UPDATE
- On January 22, 2021, the Department of Labor published updated processing times for PERM labor certification applications (PERM) and prevailing wage determination (PWD) requests. Average processing times are as follows:
- As of December 31, 2020, DOL was adjudicating applications filed in June 2020 or earlier and auditing cases filed in February 2020 or earlier.
- As of December 31, 2020, DOL was processing PWD requests filed in July or earlier.
- What does this mean?
- DOL’s data is consistent with the actual case processing times for client cases that MT is tracking. Most PERM applications and PWD requests are taking between 6 and 7 months from the date of filing at this time.
MT is closely monitoring the fast changing immigration landscape amidst the global pandemic under the Biden Administration.
We will provide updates on the developing situation and continue to assess and advise affected clients with recommendations.
BREAKING NEWS (January 8, 2021):
DHS Issues Final Rule Modifying H-1B Selection “Lottery” Process
On January 8, 2021, the Department of Homeland Security (DHS) will publish a final rule that will modify the H-1B Fiscal Year Cap Selection “Lottery” process. Instead of a random, computerized H-1B cap lottery, the new process will prioritize selection of foreign nationals whose offered wage is in the highest wage level for their occupation and geographic location according to the Department of Labor’s Occupational Employment Statistics (OES) four-level wage system. It will not change the order of selection between the regular cap and the advanced degree exemption.
This rule is scheduled to take effect 60 days from the date of publication (April 1, 2021) which would impact the Fiscal Year 2022 H-1B lottery registration. However, the incoming Biden Administration has the authority to delay all regulations that are not final on January 20, 2021 for additional 60 days. If the Biden Administration chooses to delay, this new rule will not impact this year’s H-1B lottery process. In addition, it is possible that the rule will be challenged in federal court.
What does this mean?
- This rule does not take effect immediately, and it is possible that this rule will be delayed, allowing this year’s lottery process to proceed under the current law.
- If the Biden Administration allows this rule to proceed, the H-1B cap numbers will be distributed based on the highest OES prevailing wage level. Registrations will be grouped based on the four OES wage levels and computerized random selection will occur within each wage group in a descending order of the wage level, if the number of registration for a specific wage level exceeds the H-1B visa numbers. If the offered wage is lower than the level I OES wage, the case will be ranked the same as OES wage level I.
What are key points for Employers to keep in mind?
- The H-1B cap registration process is expected to proceed as scheduled.
- DHS has not updated its registration platform to accommodate this new rule change.
- It is possible that the Biden Administration may delay this rule, which means it will not impact this year’s H-1B lottery system.
- If the rule becomes effective, entry level hires may have a more difficult time being selected in the lottery, if their wages are in the lower wage level according to the Department of Labor’s OES wage survey.
How is MT responding?
- MT is monitoring the situation very closely. USCIS is expected to issue additional instructions on how it plans to implement the rule, and we will be watching announcements from the incoming Biden Administration.
- MT will proceed with our annual fiscal year H-1B season as planned and will provide adjusted guidance as we learn more about the new rule.
U.S. Coronavirus Visa Bans Extended
Trump extended the nonimmigrant visa ban and COVID-19 related visa ban that affects H, L, J visas as well as most immigrant visas which were set to expire on December 31, 2020. These bans are now set to expire on March 31, 2021. Additional details on the visa bans can be found here.
Updated August 11, 2020 (11:30 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.
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.
- What does this proclamation do?
- 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.
- 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.
- Who is impacted?
- 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
- This proclamation specifically impacts:
- 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.
- 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.
- 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
- H-1B, H-2B and L-1 status holders who wish to travel outside the U.S. after the visa in their passport expires.
- Who is NOT impacted?
- Individuals who already have an H-1B, H-2B, L-1, and J-1 visa that is valid as of June 24, 2020
- Dependent family members who already have a H-4, L-2, and J-2 visa that is valid as of June 24, 2020
- Lawful Permanent Residents
- Those who provide temporary labor essential to the U.S. food supply chain
- Any foreign national whose entry would be in the U.S. national interest
- 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.
- 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.
- 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.
- How should employers respond to employees’ questions?
- For foreign national employees who are in the U.S. – They are not directly impacted by this proclamation unless they need to travel internationally.
- 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.
- How is MT responding?
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.
- 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.
- 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.
- Who is impacted?
PRC national graduate students and researchers in F and J status holders:
- who have had been associated with PRC’s “military-civil fusion strategy”; and
- 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
- 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.
- Who is NOT impacted?
PRC nationals who are:
- Undergraduate students;
- Lawful permanent residents of the United States;
- A spouse of a United States citizen or lawful permanent resident;
- 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;
- 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;
- 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;
- 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
- 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
- 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.
- 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:
- U.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.
July 16, 2020 Update re Presidential Proclamations
On July 16, 2020, the Department of State (DOS) issued an update to the exceptions to Presidential Proclamations 10014 and 10052 (Suspending the Entry of Immigrants and Nonimmigrants Presenting a Risk to the United States Labor Market During the Economic Recovery as a result of COVID-19 Outbreak) for humanitarian travel, public health response, and national security. New limited exceptions include:
- applicants who are subject to aging out of their current immigrant visa classification before the relevant proclamations expire or within two weeks thereafter;
- certain H and J visa applicants who are traveling to work in support of a critical U.S. foreign policy objective (such as COVID-19 response) and/or traveling at the request of the U.S. government;
- spouses and children of certain visa class holders, such as H, J, and L visa holders who are already excepted from, or not subject to Presidential Proclamation 10052.
DOS also noted that it “will continue to issue H, L, and J visas to otherwise qualified derivative applicants who are otherwise currently excepted or where the principal applicant is currently in the United States.”
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 Resumes Premium Processing
Beginning on June 1, 2020, USCIS will begin accepting premium processing requests in phases. Since March 30, 2020, USCIS had suspended premium processing for all I-129 and I-140 (nonimmigrant and immigrant) petitions.
- 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.
- 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.
- 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 are not able to depart the U.S. due to emergent circumstances before their expiration date may contact the CBP Deferred Inspection Office to request a Satisfactory Departure. 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.
- Each CBP port have specific procedures for requesting Satisfactory Departure
- 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.
- Continuing F-1 students may take online-only classes during the COVID-19 crisis
On July 6, 2020, ICE announced that it was rescinding its COVID-19 exemption for international students. The Temporary Procedural Adaptations released by ICE was set to go into effect for the fall 2020 semester and required all students on F-1 visas whose university curricula are entirely online to depart the country and prevented students currently outside the United States from entering or reentering the country. However, the enforcement of the July 6th Directive was challenged in a lawsuit, and on July 14, 2020 the government agreed to rescind the July 6th Directive, and any implementation of the new guidance, returning to a March 9 policy permitting students on F-1 visas to take online-only classes during the COVID-19 crisis. ICE clarified that universities are prohibited from issuing I-20s to new or “initial” students but may issue I-20s to students who were enrolled but left the U.S. due to the pandemic and who no wish to return to the U.S. to resume studies.
- F-1 CPT, OPT and STEM OPT workers may work remotely
Students currently participating in OPT, including STEM OPT, may work remotely if their employer has an office outside of the United States or the employer can assess student engagement using electronic means. For more info, please review ICE’s FAQ.
Dept. of State
- Consular Services Suspension and phased re-opening
As of March 20, 2020, the Department of State (DOS) has suspended routine visa services in all countries worldwide. U.S. citizen services and emergency services remain available. For more info, please visit here.
Beginning on July 15, 2020, consular posts may begin a phased reopening of routine visa services depending on local conditions. The decision to resume visa processing is post specific. The Department of State’s website maintains COVID-19 related information for the U.S. consular post in each country.
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. 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:
- U.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
- U.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.
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.
Effective 11:59PM on May 26, 2020, eastern daylight time, the travel ban is in effect for foreign nationals who were physically present in Brazil during the last 14 days prior to entry into the U.S. The travel restriction includes foreign nationals with valid nonimmigrant visas but exempts U.S. citizens and legal permanent residents. U.S. citizens and legal permanent residents, who have been in Brazil in the last 14 days, must self-quarantine for 14 days.
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. On July 21, 2020, the DHS extended this policy for another 30 days. The expiration date for these accommodations is now August 19, 2020.
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:
- 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.
- Once normal operations resume, physically inspect and retain copies of documents within three business days.
- Enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.
- 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.
- 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.