PUBLICATIONS

Changes to Employment-Based Immigration Processing in Light of COVID-19

Date   Apr 23, 2020

Executive Summary: In light of the enormous impact of the Coronavirus pandemic on U.S. employers, their workforces and the economy, the U.S. government agencies that adjudicate employment-based immigration matters have modified some of their operations, in some instances relaxing some of their policies, procedures and filing requirements. In addition, President Trump has implemented travel restrictions to limit the entrance of certain travelers to the U.S. to stem the spread of the virus. This alert briefly summarizes the main immigration-related processing changes that have occurred and accommodations that have been extended to employers and their foreign national workers during the global health crisis.

Top 10 COVID-19 Immigration Developments

  1. The Northern border between Canada and the U.S. and the Southern border between the U.S. and Mexico are closed to non-essential travelers.
  2. Restricted entry for those traveling to the U.S. from the U.K., Ireland, 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, Switzerland, China and Iran.
  3. The State Department (“DOS”) has suspended routine visa processing services at virtually all U.S. Consulates around the world.
  4. U.S. Citizenship and Immigration Services (“USCIS”) has closed its local field offices for in-person services.
  5. USCIS has temporarily suspended its “Premium Processing” expedited benefit processing service.
  6. USCIS has extended certain response deadlines by 60 days.
  7. USCIS will accept copies of original signatures in lieu of "wet" signatures on filings.
  8. I-9 requirements have been relaxed for employers operating remotely during the National Emergency allowing them to delay the physical in-person document review requirement until after the crisis and allowing them to perform remote inspection in the meantime.
  9. Employers will have a 60-day extension to respond to I-9 Notices of Inspection issued in the month of March 2020.
  10. The Department of Labor (“DOL”) is issuing electronic certified Labor Certifications (Form ETA-9089) in lieu of the standard hard copy normally required for the I-140 Immigrant Petition; DOL has provided some flexibility regarding the 180-day filing timeline for certain Labor Certification Applications.

DOS

Suspension of Routine Visa Processing Services at U.S. Consulates Around the World.

DOS has stopped routine visa processing services at US consulates around the world. In some cases, the U.S. consulates continue to provide emergency services to U.S. citizens.

Travel Restrictions.

Foreign travelers of any nationality will be barred from entering the U.S. if they have been in one of the following countries within 14 days of the U.S. entry date: U.K., Ireland, 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, Switzerland, China and Iran. This restriction does not apply to U.S. citizens and Lawful Permanent Residents of the U.S. Those individuals may be subject to a mandatory 14-day self-quarantine.

U.S. Customs and Border Protection (“CBP”)

The land border ports of entry at the Southern/Northern Borders at Mexico and Canada are closed to non-essential travelers (i.e., travelers for tourism and recreation). Essential Travelers, including workers, can still cross at the land ports of entry but CBP may ask questions about their essentiality. Providing the worker a letter explaining how he is involved in the essential sector is a best practice.

USCIS

USCIS Has Closed Its Local Field Offices For In-Person Services.

As of March 18, USCIS has temporarily suspended routine in-person services through at least May 3. USCIS has cancelled and will reschedule in-person appointments when services resume. USCIS will continue processing renewal applications for Employment Authorization Documents with previously taken biometrics. USCIS has cancelled I-485 adjustment of status green card interviews, but there are reports that in some cases USCIS has nonetheless adjudicated the application without an interview

USCIS Has Temporarily Suspended its Premium Processing Service.

On March 20, 2020, it suspended its fast-track Premium Processing service for all I-129 Nonimmigrant Visa Petitions and I-140 Immigrant Petitions in the following categories:

  • I-129: E-1, E-2, H-1B (including new H-1B petitions for the Fiscal Year 2021 Cap), 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.
  • I-140: EB-1, EB-2 and EB-3.

USCIS continues to process immigrant and nonimmigrant benefits according to lengthy standard processing timelines. Under Premium Processing, employers or their sponsored workers could pay USCIS an additional fee of $1,440 to ensure a decision or other action within 15 days. Without Premium Processing, immigration benefits take several months to process. Fortunately, many foreign workers are eligible for an automatic 240-day extension of work authorization when an extension is timely filed and pending. However, if the worker leaves the U.S. during the automatic extension period, he will forfeit it and may have to wait outside the U.S. for the petition to be approved before he can return to the U.S. Finally, USCIS may still exercise discretion to expedite a benefit when there are documented compelling circumstances of:

  • Severe financial loss to a company or person;
  • Urgent humanitarian reasons;
  • Compelling U.S. government interests (such as urgent cases for the Department of Defense or DHS, or other public safety or national security interests); or
  • Clear USCIS error.

Flexibility Regarding Response Deadlines for Certain USCIS Requests.

USCIS has provided an additional 60 days to respond to a Request for Evidence, Notice of Intent to Deny, Notice of Intent to Revoke, or Notice of Intent to Terminate dated between March 1, 2020 and May 1, 2020, inclusive. The additional 60 days will be calculated from the deadline stated on the notice or request.

Flexibility Regarding USCIS Requirement for “Wet” Signatures.

USCIS has relaxed its requirement for original, “wet” signatures on immigration benefit filings. For immigration filings dated on or after March 21, 2020, USCIS will accept electronically reproduced original signatures (e.g. scan, fax, photocopy, or similar) for the duration of the National Emergency. The copy must be of an original document containing an original handwritten “wet” signature. The filer should retain the original, signed documents in case USCIS requests them later.

DOL

Flexibility Regarding Permanent Labor Certification (Form ETA-9089)

From March 25, 2020 through June 30, 2020, the DOL will issue an electronic certified Form ETA-9089 and Final Determination letter in lieu of the standard hard copy. When the electronic certified ETA-9089 is printed and filed with original signatures in conjunction with the I-140 Immigrant Petition, the USCIS will consider it to have satisfied the requirement for “an original labor certification issued by DOL.”

DOL has provided some flexibility regarding the 180-day filing timeline for certain Labor Certification Applications. If an employer started the required recruitment on or after September 15, 2019, but could not complete the recruitment by March 13, 2020, the date of the National Emergency announcement, it will have 60 additional days, or until May 12, 2020, to file the Labor Certification. However, the employer will not have the benefit of the additional 60 days if the employer had already completed the required recruitment within the required 180-day period. In that case, the employer is required to file the Labor Certification according to the standard DOL rules.

Flexibility Regarding DOL Filing or Response Deadlines.

DOL has indicated that it will provide some flexibility and extend deadlines for employers and their authorized attorneys who are delayed in responding to requests for information and other correspondence about processing of applications for prevailing wage determinations and labor certification (e.g., Requests for Information, Notices of Deficiency, Notices of Audit Examination) due to COVID-19 impacts. However, no specific details have been provided about the circumstances in which DOL will provide such flexibility

No Flexibility Regarding DOL’s H-1B Wage Payment Obligations during Layoff/Furlough.

An employer must continue to pay an H-1B worker according to the terms of the DOL-certified Labor Condition Application throughout any furlough or layoff period. The only way to stop the employer’s obligation to pay the H-1B worker is to terminate the employment by:

  • Notifying the worker of the termination;
  • Sending written notification to USCIS that the employer is withdrawing H-1B sponsorship;
  • Withdrawing the certified LCA from DOL; and
  • Paying the reasonable cost of airfare to the H-1B worker’s foreign home

Department Of Homeland Security (“DHS”)

Flexibility Regarding I-9 Requirements.

During the National Emergency, DHS has extended flexibility in I-9 Section 2 requirements to employers who are operating remotely during the National Emergency. Specifically, DHS allows an employer who has transitioned to a remote operation to delay the in-person inspection of an employee’s original identity and employment eligibility documents until May 19, 2020, or within three days from the date the National Emergency is lifted, whichever occurs first. No exceptions to the in-person review requirement are being provided if an employer has employees on site. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate these instances on a case-by-case basis.

Flexibility Regarding E-verify Requirements.

For E-verify employers who conduct remote I-9 inspection according to the preceding paragraph, they should create an E-verify case for the new hire within three business days from the date of hire. If the employer is delayed in creating an E-verify case, can select “Other” from the drop-down list and enter “COVID-19” as the specific reason.

Flexibility on TNC Resolution Timeframe.

E-Verify is extending the timeframe for employees to resolve E-verify Tentative Nonconfirmations (“TNC”) issued by the Social Security Administration, and in some instances, DHS due to office closures. Employers cannot take adverse action against the employee during the extended resolution period.

Immigration and Customs Enforcement (“ICE”)

60-Day Extension of Deadline to Respond to I-9 Notice of Inspection

Employers who received a Notice of Inspection from ICE during the month of March 2020 and have not already responded will be granted an automatic extension of 60 days from the effective date. At the end of the 60-day extension period, DHS will determine if an additional extension will be granted.

Bottom Line

In light of the National Emergency and the fluid COVID-19 situation, U.S. immigration agencies responsible for adjudicating, administering and enforcing immigration laws and visa programs have extended certain response deadlines and provided some flexibility on immigration requirements. However, in some cases, the accommodations are time-limited. Therefore, companies who rely on the flexible requirements should ensure compliance with any modified procedures or requirements and stay abreast of any time limits. Therefore, companies should ensure that their Human Resources and/or other departments that handle foreign workers internally understand how to carry out any modified requirements. In addition, due to heavy travel restrictions, employers may want to advise foreign workers against international travel during the global health crisis to avoid the risk of a worker getting stuck in a foreign country. If international travel is necessary, employers should discuss the advisability and risks of doing so before departing.

If you have any questions regarding the issues addressed in this Alert or have other business immigration questions, please contact Geetha Adinata, head of FordHarrison's Business Immigration practice group at gadinata@fordharrison.com, or Charlie Roach, croach@fordharrison.com, or Loren Locke, llocke@fordharrison.com, in the Business Immigration practice group. Of course, you may also contact the FordHarrison attorney with whom you usually work. For information on various immigration-related coronavirus issues, including governmental travel bans, changes in immigration processes, suspension of government services, and office closings as well as practical tips on how businesses can manage the impact of this global healthcare crisis as it relates to immigration issues, please see our Coronavirus Taskforce Immigration page.