COVID-19 Immigration Updates from Green and Spiegel US LLC
By: Jonathan A. Grode (email@example.com) and Joshua Rolf (firstname.lastname@example.org)
In less than three months, COVID-19 has gone from an underreported varietal of severe acute respiratory syndrome (SARS) to a global pandemic affecting international markets and municipal economies, local and national health systems, and interpersonal relationships, at an unprecedented and expanding rate. As the U.S. (and the rest of the world) continues to limit the free movement of people across our national borders and considers doing so within our own country, individuals and organizations must strategize how to navigate these restrictions on their personal and corporate mobility. The following factsheet will help outline some of the most common issues that are arising with COVID-19 as it relates to the U.S. immigration system.
Entering the U.S. – Travel Restrictions, Consular Closures, and ESTA Cancellations
The first step the U.S. government took to combat COVID-19 was to limit travelers who had recently been in mainland China from entering the U.S. In the 6 weeks since these initial restrictions went into effect, 29 other countries have been added to the list. Consular services have also been interrupted while airlines are running fewer and fewer flights to and from the U.S., and passengers on those flights should expect excessive delays and significant risk of exposure.
- Foreign nationals (i.e. non-U.S. citizens) who have been physically present in China, Iran, the Republic of Ireland, the United Kingdom, and the 26 Schengen Area countries within 14 days of traveling to the U.S. will not be allowed to board a flight.
- Exceptions include U.S. green card holders, spouses of U.S. citizens/green card holders, certain parents/siblings of U.S. citizens/green card holders, and diplomatic workers.
- U.S. citizens/exempted foreign nationals still may be subjected to quarantine after enduring long waits that increase risk of exposure.
- Consular locations in China, India, and even Canada have ceased operations.
- Even though he/she could self-quarantine in a third-country for 2 weeks before returning to the U.S., CBP has begun cancelling existing ESTA registrations to ban potential travel. Cancellations performed without prejudice (future effect on subsequent ESTA registrations).
Non-U.S. citizens and non-green card holders physically present in the U.S. must abide by the terms of their admission to this country – or, “maintain” their nonimmigrant status. This mandate entails not only engaging in activities that are permitted under the terms of the benefit they have received, but departing the U.S. or taking an affirmative action to change and/or extend their period of stay by a prescribed date.
But what do you do when you cannot return to your country of origin, your school cancels in-person classes for the semester, you begin working remotely from home due to office closures, your long-pending request goes un-adjudicated due to agency cutbacks, or you are benched or fired?
As these and additional questions – some of which we have answers for, while we await guidance on others – potentially trigger prohibitions on returning to the U.S., individuals and entities must pay close attention.
- VISA WAIVER (ESTA): Customs and Border Protection (CBP) will start allowing ESTA holders to request extensions if they cannot depart the U.S. due to coronavirus-created complications this week. The specific mechanism for this is still under review, but for right now the extension will be limited to 30 days.
- FOREIGN STUDENTS: F-1 students are typically forbidden from taking on-line classes as doing so would be a violation of their status. On Friday March 13, the USCIS announced that F-1 students WILL BE permitted to maintain status as universities cancel in-person classes and close campuses. F-1 students with work authorization may be permitted to work remotely, but post-completion OPT carries unemployment limits (90 days over 1 year or 150 days over 3 years) that could be tested if closures become long-term.
- H-1B WORKERS: H-1B employment is designated for a specific job in a specific location. As offices across the nation are moving to remote work and telecommuting, where the work is performed might become an issue. As long as the work from home is in the same metropolitan area as the worksite listed on the H-1B petition, there should not be an issue. However, specific cases where a worker is remoting from a distance, could cause issues with H-1B validity. Under the letter of the law an amended filing might be needed. There has been no guidance from USCIS in this regard.
- INTERNALLY FILING EXTENSIONS: A timely-filed extension or renewal must arrive before the current benefit’s expiration. With respect to the ability to work in the U.S., such an extension or renewal may automatically prolong work authorization for 180 or 240 days while the request is pending (depending on the underlying status). USCIS’ remote work, along with planned and potential changes to Premium Processing (where available), may lead these filings to go undecided before their automatic extensions expire. There has been no guidance from USCIS in this regard.
- LAYOFFS AND OFFICE CLOSURES: Office closures and other disruptions in the economy may lead employers to consider benching or firing foreign workers. Benching, especially for Labor Condition Application-Based Petitions and Applications (i.e. H-1B, E-3, and H-1B1), is prohibited in most circumstances, and terminating a foreign worker creates obligations for the employer and employee.
- Employer → Notify USCIS of termination and for H-1B employees, pay for cost of return flight.
- Employee → Enter grace period that is 60 days or remaining portion of current status, whichever is shorter. Must have submit new filing or depart the U.S. within the grace period.
- NEW HIRES AND EMPLOYMENT VERIFICATIONS: I-9 enforcement has been a strong initiative for the Trump administration. I-9 Verification requires in person review of material to prove eligibility to work. When work move remotely, fulfilling this obligation can be a challenge. There are some ways in which an employer can mitigate a violation for this rule, but unfortunately, there has been no guidance from USCIS or ICE in this regard.
- NEW PUBLIC CHARGE REQUIREMENTS: On February 24, 2020, USCIS implemented a new rule aimed at preventing individuals who have or may access certain cash and non-cash public benefits from obtaining permanent residence or even a work visa. On March 13, 2020, USCIS confirmed that testing, screening, or treatment for a communicable disease such as COVID-19 will not be considered in this determination.
- REMEDIES FOR MISSING EXPIRATION DATES AND DATES OF DEPATURE: A nunc pro tunc (“now for then”) filing can remedy late filings or loss of status for reasons outside of control of the foreign national. It is our position that any delay due to the Coronavirus would be considered a viable justification for a late submission.
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