COVID-19 Upends U.S. Immigration

 

Roy Maurer By Roy Maurer March 22, 2020
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immigration lanes at airport

​The escalating response to the spread of the COVID-19 coronavirus has impacted several facets of employment-based immigration to the United States.

"Coronavirus raises a host of difficult immigration issues for U.S. businesses, including the status of H-1B visa holders and international students, obtaining I-9 verification for new employees and travel restrictions that limit mobility for international personnel," said Stuart Anderson, executive director of the National Foundation for American Policy, a public policy research organization based in Arlington, Va.

Below are some of the important immigration issues facing U.S. employers and their foreign national workers during the current public health crisis.

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Coronavirus and COVID-19

Travel Bans

President Donald Trump announced March 11 that nearly all travel from Europe's Schengen Area to the U.S. would be stopped as part of the administration's effort to contain the outbreak of the coronavirus wreaking havoc across the globe.

The White House proclamation prohibits any foreign nationals—not just Europeans—from entering the United States if they have been in the Schengen Area within 14 days before their attempted entry.

The Schengen Area comprises Austria, Belgium, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and Switzerland. The United Kingdom and Ireland were later added to the ban.

Previously implemented travel restrictions for foreign nationals traveling from China and Iran remain active. The White House also announced that all nonessential travel between the U.S., Canada and Mexico would be paused.

"Some employees are stuck overseas and cannot get back to their positions in the U.S.," said Beth Carlson, an immigration attorney and counsel in the Minneapolis office of law firm Faegre Drinker. "Guest workers who may have been planning to come to the U.S. on an L-1 visa or other type of work visa may need to push back their position and relocation to the U.S. until a future start date."

Government Office Closures

U.S. Citizenship and Immigration Services (USCIS) announced March 18 that all offices are temporarily closed to the public and all in-person services such as visa interviews and biometrics collection appointments are canceled until at least April 1. They will be rescheduled.

USCIS staff, many of whom are working remotely, will continue to perform duties that do not involve contact with the public, the agency said.

"The USCIS remote work agreements, office closures and staff reductions portend more and more interview cancellations, appointment rescheduling, adjudication delays and backlog buildups that will likely become worse over time," said Angelo Paparelli, a partner in the business immigration practice group at Seyfarth Shaw in Los Angeles and New York City.

He added that the delayed services will complicate workers' underlying visa status, their ability to depart and reenter the U.S., and their employment authorization.

"U.S. employers will be required to help these employees maintain and preserve employment authorization, immigration status and eligibility for green card benefits as best they can," he said. "Unless USCIS takes action to prolong and expand interim grants of employment authorization for pending immigration benefits requests, or otherwise excuse status violations, the situation for employers and their noncitizen temporary workers will become dire."

Office closures are not limited to the United States. The Department of State announced that U.S. embassies and consulates around the world are suspending most immigration services.

A potential crisis halting agricultural foreign guest workers from Mexico with H-2A visas from entering the U.S. is being mitigated, according to reports. The U.S. Embassy in Mexico had announced it would suspend processing visas on March 18 in an effort to curb the spread of coronavirus, just as farmers are gearing up for the peak spring and summer growing seasons.

The Agriculture Workforce Coalition, which includes the Farm Bureau as well as the Western Growers Association and other farm industry groups, is working with the Department of State to recognize H-2A visa processing as an essential function.

"Employers and employees should be mindful of the availability of visa services at consular locations, check the State Department and consular websites frequently, and plan accordingly," said Forrest Read, an attorney in the Raleigh, N.C., office of Jackson Lewis.

Falling Out of Status

Read explained that employees with temporary work visas could find themselves "out of status" if their company shuts down and they are no longer working. "If a foreign national is out of status, the individual must change to another status or leave the country," Read said.

Maintaining legal status includes the timely submission of an application or petition requesting an extension of status before it expires, Paparelli said. "If the extension request is untimely filed, perhaps for reasons related to COVID-19, the employer or worker should explain why the restoration of status ought still be granted based on extraordinary circumstances, or why a lapse in status should not deprive the individual of eligibility for adjustment of status to receive a green card under the forgiveness clauses."

Paparelli warned that guest workers who remain in the U.S. after their status expires face a minimum three-year "unlawful presence" bar to reentry for overstay periods of less than 12 months, or 10 years for overstays of a year or more.

"While USCIS has authority to suspend the accrual of unlawful presence, its current policy does not clearly provide that relief for untimely-filed requests for extension of status," he said.

H-1B Issues

Employers of temporary foreign workers with H-1B visas are facing a host of uncertainties right now due to the necessity to close work locations and switch over to remote work.

"Working from home could negatively affect the status of employees in H-1B status," said Jang Hyuk Im, an attorney in the San Francisco office of Epstein Becker Green. He explained that when an H-1B worker starts working remotely at a location not on the original H-1B visa petition, a new labor condition application (LCA) posting or a new LCA and an amended petition may be required.

"Whenever the work location changes, the LCA must be posted in two conspicuous areas at the new work location for at least 10 consecutive business days," he said. "That's provided that the work location change is within normal commuting distances from the original LCA work location address. If the LCA work location address is outside such commuting distances, then the longest period of time that the H-1B employee can work from his or her home is 10 business days."

Paparelli said that employers must first determine whether the H-1B employee's work-from-home location is within commuting distance of the approved place of work listed on the LCA—typically sanctioned by the Department of Labor (DOL) as within 50-70 miles—in which case a new LCA will not be required. If the new location is outside that geographic radius, a newly certified LCA, public-notice posting, and new or amended H-1B petition is required.

"To prove that the within-commuting-distance exception applies, the employer should document the distance between the permanent office location and the employee's home," Paparelli said. "The employer should also provide the employee with a notice containing the essential elements of an LCA posting notification for the home office location which should then be posted at the home office for ten business days." 

Read suggested that other material changes to an H-1B worker's terms of employment might have to be reported, such as changes in pay triggered by moving from full-time to part-time work. "If H-1B workers are not being paid the salary in the LCA filed with their H-1B petitions, employers can be found liable and be obligated to provide back pay," he said.

Unfortunately, the growing pandemic may lead to an increase in furloughs and layoffs. If an employer announces unpaid work furlough for all workers, regulations require that all H-1B workers be paid the required wage listed in the LCA. And if an employer decides to fire an H-1B employee before the person's approved authorized status expires, the termination must be "bona fide."

"A bona-fide termination requires that both the employee and USCIS be notified in writing that the employment relationship has ended, and that the employer has made arrangements to cover the cost of the worker's return transportation to his or her country of citizenship or permanent residence," Paparelli said. "If a termination of H-1B employment is later determined not to have been bona fide, then the employer may nonetheless have a continuing responsibility to pay back wages and arrange return transportation until a bona-fide termination occurs."

Foreign National Students

U.S. Immigration and Customs Enforcement (ICE) stated March 9 that it will be "flexible" with visa rules for international students as universities close and move courses online.

Typically, students (and student workers) on F-1 visas would fall out of status if they were taking all online courses during a campus shutdown. Foreign students on F visas can normally only take one online course per semester to maintain legal status, but ICE will relax that requirement temporarily in light of the COVID-19 crisis so long as universities provide written notice of the change to its practices. Students can temporarily engage in distance-learning, either from within the U.S. or outside the country. The ICE guidance didn't address what would happen if universities completely shut down, rather than move courses online.

"ICE also indicated that workplace requirements might be impacted for those students engaged in F-1 optional practical training [OPT] or F-1 curricular practical training and that the students should work with their employer on ways to maintain employment, including telework or other similar arrangements," Carlson said. "J-1 sponsors are also reaching out to confirm remote working arrangements for J-1 trainees and interns so that these exchange visitors are also in compliance with their status and government rules."

Paparelli said that his firm is hearing reports of schools advising students to return to their home countries to complete the semester virtually. "We advise F-1 students to follow the instructions that they are receiving from their respective schools, but we strongly recommend that they apply for OPT and file their employment authorization applications before they depart the U.S.," he said. "These applications cannot be filed from outside the U.S., and failure to file these applications before departure could result in a loss of OPT work authorization, which in turn will render students ineligible for future STEM OPT extension benefits."

Green Card Processing

Paparelli pointed out that the DOL's labor certification process necessary for obtaining employment-based green cards for workers is being challenged by employers' coronavirus prevention measures.

"One impediment triggered by COVID-19 involves a DOL requirement that is wholly unrealistic and impossible to fulfill in light of the foreseeable and widespread office closures to stem the spread of the virus," he said, referring to the regulation that organizations physically post notices of the labor certification request at the worksite. Unlike with H-1Bs, an electronic notice is not an acceptable substitute. "To date, DOL has not relaxed this notice-posting requirement at the place of employment, thus making it impossible for any employer to comply with the PERM regulations and sponsor a noncitizen for labor certification, if no one is stationed at the employer's facility to post the notice," Paparelli said. The regulation makes no sense, since the notice in hard-copy form will never be seen by employees required to work from home anyway, he said.

The Trump administration confirmed that it does not plan to conduct site visits at company office locations that have closed due to COVD-19.

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