The ability to retain foreign national employees and send employees on critical business trips internationally has been severely impacted for employers as COVID-19 has swept the globe. Border closures and the rapid decline in commercial flights have left many business travelers stranded far from home and work. Closures of consulates and domestic immigration offices have left employers and their foreign national employees in many locations struggling over what to do with upcoming visa and work permit expirations.
This article provides an overview of the significant immigration challenges resulting from COVID-19 responses outside the United States, as well as recommendations for best practices to respond to these challenges. The information provided is for informational purposes only and accurate as of the time of writing, but it is subject to change without notice. In many instances, governments have provided only a few hours' notice prior to implementing a travel ban. Thus, if you have specific immigration issues, consult your immigration advisor for assistance based on the most up-to-date rules and policies.
Travel Bans
As the coronavirus pandemic rages on, most countries worldwide have implemented travel restrictions ranging from simple exposure screening for new arrivals to a total ban on entry and exit. Here is a brief survey of the travel bans and restrictions in common business-travel destinations.
Australia. Australia has imposed a ban on entry that applies to almost anyone who is not an Australian citizen, permanent resident or New Zealand citizen usually residing in Australia. Very narrow exceptions are made to allow temporary residents to return or travel to Australia for compelling or compassionate reasons. Australian citizens and residents are also banned from traveling out of Australia without first obtaining preapproval based on exceptional circumstances.
Canada. Canada has implemented a travel ban but allows for more exceptions than some other countries. It has banned all foreign nationals except those who are foreign workers, international students, permanent residents and immediate family members of Canadian citizens or the aforementioned groups. It has also, in agreement with the U.S., closed the border to all nonessential tourist and recreational travel.
China. China has imposed a ban on the entry of foreign nationals, including those holding visas or residence permits. This means that foreign nationals who normally reside in China pursuant to a residence permit but temporarily abroad are not allowed to return to China until the ban has been lifted. There are narrow exemptions. If an employee is abroad and qualifies for an exemption, he or she should apply for a visa with the Chinese consulate that has jurisdiction over the locality where the employee is staying.
India. By grounding all incoming commercial flights until further notice, India has implemented a near total travel ban, regardless of the traveler's citizenship or immigration status. India has also closed most of its land borders and is working directly with other countries to arrange for very limited evacuation flights to repatriate foreign nationals when necessary.
Mexico. Mexico has not implemented a general travel ban but has, in coordination with the U.S., closed the U.S.-Mexico land border until further notice.
Schengen Area (Europe). The 26 Schengen Area member states (most of continental Europe) agreed to impose a partial ban on entry to the Schengen Area. All non-European Union (EU) citizens are barred from entering the area for nonessential purposes. Citizens of the Schengen member states are allowed to return home, as are long-term foreign national residents of the area, as returning home is considered essential. Family members of EU citizens are also exempt from the ban, as are essential workers in the health care and transport sectors.
United Kingdom (U.K.). To date, the United Kingdom has not imposed a travel ban and has simply instructed returning travelers from China and Italy to self-isolate.
In-Country Visa and Work Permit Expirations
Companies with employees currently in a foreign country, whether stuck unexpectedly on a business trip or on an assignment long term, are grappling with what to do about upcoming work visa or permit expirations, given the closure of many government immigration offices. Many countries have proactively made provisions for the automatic extension of visas and permits.
Australia. Australia has undertaken measures to preserve the validity of work visas in the face of temporary work stoppages and is allowing companies some flexibility to vary the terms of work. However, it has not implemented automatic extensions for expiring visas. In the interim, apply to extend any expiring visas using the immigration authorities' online system.
Canada. Canada has not provided for automatic visa extensions and is still accepting in-country applications for extension of most visa and permit types. This means that applying in a timely manner to extend the status for both business visitors and assignees is crucial. In many instances, extension applicants will be considered in "implied status" and legally able to remain in Canada while their applications are pending, so long as they are filed prior to their expiration dates.
China. China has automatically extended for 60 days all short-term visas and work and residence permits that were due to expire on or after Jan. 20, 2020. There is no need to apply; the extension is granted automatically, and anyone who has overstayed his or her visa or permit during that period will not be counted as an overstay. Following this period, it will be important to file for any further extension in a timely manner.
India. India has provided that all consular and e-visas of foreign nationals currently in India that were set to expire from Feb. 1 to April 29 will be extended by the government to April 30, free of charge. The foreign national must make an online application requesting the extension. In addition, foreign nationals whose visas have already expired will be granted exit permits to depart India without incurring a fine.
Mexico. Mexico's immigration authorities remain open and are accepting extension applications. Apply for a visa or permit extension in advance of the expiration date, as no provisions have been made for automatic extensions or grace periods.
Schengen Area. Pursuant to their national immigration laws and policies, countries within the Schengen Area are administering their own COVID-19 visa and permit extension policies. Here are two examples:
*France. Most government offices are closed, and the processing of residence permits has been temporarily suspended. Residence permits, including long-stay visas; provisional residence permits; and regular residence permits due to expire between March 16 and May 15 have been automatically extended for three months.
*Germany. Many government offices are closed, and offices that are open are operating with reduced staff who are working remotely. Residence permit applications are still being accepted by mail and electronically (by fax, on websites, or by e-mail depending on the location) and processed remotely (no biometrics are being taken). Automatic extensions have not been granted, so apply for an extension prior to the expiration date. In many instances, the employee will remain in implied legal status while awaiting the extension in country, as long as the extension application was filed prior to the expiration date of the current visa or permit.
U.K. The U.K. is automatically extending by one year the visas of doctors, nurses and paramedics working for the National Health Service, without requiring an application or fee payment. For others whose visas expire between Jan. 24 and May 31, visas will be automatically extended to May 31 if they are unable to leave the U.K. due to COVID-19. The U.K. has also provided some flexibility regarding in-country change of status, as well as the ability to work from home, reduced hours and other allowances when employers and employees are unable to fully comply with their normal visa terms due to COVID-19.
Visa Expiration Due to Delayed Travel
Many companies also have employees who obtained visa approvals but have not yet been able to travel to their destination country due to the coronavirus outbreak. Some countries are proactively addressing this situation by offering automatic visa extensions or grace periods within which travelers can use the visa. Other countries have taken the opposite approach and canceled all visas due to their corresponding travel bans. Most countries are understandably prioritizing those who are already in the country but falling out of status over those who have yet to travel. Many are hopeful that, once travel bans are lifted and consulates reopen, most governments will either provide automatic extensions or streamline procedures for procuring new visa stamps.
Australia. Australia has not taken steps to address the issue of delayed travel but has instead canceled the visas of those who are not currently eligible to enter Australia under the travel ban. Measures to reinstate the visas may be taken once travel is again possible, but details of these measures have not yet been confirmed.
Canada. Canada has not made provisions for extending visas for individuals who are currently outside Canada and, due to COVID-19, are unable to travel to Canada before their visas expire. Most consulates and visas centers are currently closed, so new visa applications cannot be finalized.
China. China has automatically extended for 60 days all short-term visas that were due to expire on or after Jan. 20, 2020; however, it is not yet clear if this automatic extension applies only to foreign nationals in China or also to foreign nationals who will travel to China once the travel ban is lifted. This policy could be clarified in mid-April once the authorities revisit the travel-ban terms.
India. India has temporarily suspended the validity of almost all visas for those outside India until April 15. This period may be extended, depending on how the COVID-19 crisis develops globally. It is not yet clear whether, when the visas are reinstated, the government will grant extended validity or if the employees will need to apply for new visa stamps or e-visas.
Mexico. Mexico has not provided automatic extension of visitor or work visas.
Schengen Area. France has automatically extended for three months long-stay visas due to expire between March 16 and May 15. It is not clear whether short-stay visas will also be extended when the travel ban is lifted.
Neither Germany nor the Netherlands have provided automatic extensions for long-stay or short-stay visas.
U.K. The U.K. has not made provisions for automatic extension of visitor or work visas. Normally, it is possible to extend a Tier 2 entry visa, which is typically valid for only 30 days, with limited documentation and minimal fees by applying for a new visa prior to the expiration date. If an application is filed after the expiration of the current visa, the process is much more involved and expensive. As visa centers are currently closed, it is not possible to apply for extension before expiration.
Tips for Navigating Global Immigration Challenges During COVID-19
Be proactive. Proactively identify employees who are or may be affected by immigration challenges related to COVID-19. If you have employees with an essential, urgent purpose for traveling, carefully review the current travel restrictions in the destination country and any countries they will need to pass through in transit. When in doubt, consult the immigration authorities or your immigration counsel to confirm whether an employee may legally travel.
For employees who are already in a foreign country, make sure you have their complete visa or permit information, including expiration date, on file. Whenever possible, continue to file extension applications for imminently expiring visas and permits, and also identify anyone with a visa that expires within the next five to six months. Even after the immediate pandemic situation is resolved, there could be extensive backlogs in processing visas and permits as government offices reopen. If you can identify those visas with upcoming expiration dates, you can gather the necessary documents and information now and be ready to file an extension once that becomes possible.
Document your efforts. If you have an employee on a short-term business visa or longer-term work permit that is expiring, and you are not able to file an extension application because government offices are closed, carefully document the steps you took to try to remain compliant. This can include outreach directly to the central immigration office, regional authority or consulate. While many government offices are closed, some staff are working remotely and able to answer e-mail. Sending inquiries via e-mail also provides you with a record of your attempts to maintain or bring your employees into compliance with immigration rules. Should a fine or other punishment for violation be threatened or imposed later, evidence of your efforts could be important in mitigating penalties.
Put health and safety first. Overstaying a visa or dealing with an expired work permit can be extremely stressful for the both the employer and employee. Take all possible steps to comply with immigration rules and regulations, and remember that we are in the midst of a life-threatening pandemic, so put the health and safety of employees first. Even in countries that have not taken steps to automatically extend visas and permits or to waive fines and other penalties, steps may yet be taken to protect those who were, through no fault of their own, unable to maintain legal status. So identify your impacted employees, thoroughly document your efforts to remain compliant, and remember to stay safe out there.
Audrey Lustgarten is the founder of Lustgarten Global LLC in Petoskey, Mich., an outbound immigration law firm which works to procure employment visas, work permits, residence permits and business visas for employees being sent to countries around the world.