US Immigration Issues for Employers - McDermott Will & Emery

US Immigration Issues for Employers



Here is the latest list of changes to the US Citizenship and Immigration Services (USCIS), US Customs and Border Protection (CBP), US Department of Labor (DOL), Immigration Customs and Enforcement (ICE) and the US State Department (DOS) as the agencies adjust to the challenges from COVID-19.

In Depth

US Citizenship and Immigration Services (USCIS), US Customs and Border Protection (CBP), US Department of Labor (DOL), Immigration Customs and Enforcement (ICE), and the US State Department (DOS) are developing new policies and procedures on a daily basis to address challenges in light of COVID-19. See below.

USCIS Office Closures

As of March 18, 2020, USCIS has suspended all in-person services at USCIS offices nationwide until at least April 1, 2020. While USCIS has indicated some emergency appointments may still be scheduled, no information has been shared with respect to what constitutes an emergency that would permit an appointment.

Those with scheduled appointments for adjustment of status to permanent residence, naturalization interviews and oath ceremonies, and other routine appointments will be cancelled. Applicants and petitioners with scheduled appointments will receive a cancellation notice in the mail. Those with appointments at the Application Support Centers for biometrics will receive letters automatically rescheduling their appointments once regular operations resume. USCIS asylum offices will send cancellation notices and automatically reschedule asylum interviews. Anyone with an InfoPass or other appointment at the field office will be required to reschedule on their own through the USCIS Contact Center. Individuals are advised to check their field office before going through the Contact Center, if possible.

Closure of US Consular Offices Abroad

Effective March 19, 2020, the DOS has advised that all US consular posts abroad are now closed for routine nonimmigrant and immigrant visa issuance. All scheduled appointments are cancelled and will be rescheduled for a future date. Emergency services will be provided as needed, however no guidance has been provided on what constitutes an emergency.

Individuals should check the guidelines for their specific consular post.

US citizen services at consular posts may be continued on a limited basis. At the present time, appointments for those wishing to renounce US citizenship have been cancelled at many posts.

An issue of particular concern is the expiration of immigrant visas for those who have not yet entered the US under current regulations, an immigrant visa for entry to the US has a validity period of six months. Though no rule exists to extend an immigrant visa beyond the six months, the DOS has stated that for those who cannot enter the US during the six month period due to COVID-19, the consular post may be able to reprint the immigrant visa foil once travel restrictions are removed. Reprinting of the visa foil can only be done if the underlying documents such as the medical exam and police certificates have not expired. If such documents have expired, the individual will need to present updated documents for reissuance of the visa foil.

US Passport Services

Effective March 20, 2020, the DOS will only accept expedited passport applications from those with a qualified life-or-death emergency which requires travel within 72 hours. A qualifying emergency is the serious illness, injury or death of a parent, child, spouse, aunt, uncle, etc. that requires the applicant to travel abroad. Anyone who has a qualifying emergency must call the Passport Information Center at +1 877 487 2778 ( +1 888 874 7793 TDD/TTY) on Monday through Friday, 8am to 5pm EST, except federal holidays or on Saturdays, 10am to 3 pm EST. Call +1 202 647 4000 outside of these hours to make an appointment. Upon application, proof of the emergency will need to be presented.

DOS will honor expedited passport applications that were submitted on or before March 19, 2020, with a 2 to 3 week door-to-door service.

Those applying for a routine passport or passport extension after March 19, 2020 will not receive expedited service and can expect delays in processing.

Waiver of ‘Wet’ Signatures on Most USCIS Forms

USCIS has announced that in response to the COVID-19 emergency, all benefit forms and documents with reproduced original signatures for submissions dated March 21, 2020 and beyond will be accepted.

While USCIS already accepts various petitions, applications and other documents bearing an electronically reproduced original signature, some of the forms used most often, including Form I-129 for nonimmigrant workers and the Form I-140 for immigrant workers, have required a wet signature. Under the new policy, USCIS will accept a document where the signature has been scanned, faxed, photocopied or similarly reproduced provided that the copy is of an original document containing an original handwritten signature, unless otherwise specified. For forms that require an original wet signature, per form instructions USCIS will accept electronically reproduced original signatures for the duration of the National Emergency. This temporary change only applies to signatures. All other form instructions should be followed when completing a form.

Individuals or entities that submit documents bearing an electronically reproduced original signature must also retain copies of the original documents containing the wet signature. USCIS may, at any time, request the original documents, which if not produced, could negatively impact the adjudication of the immigration benefit.

New Guidance on Completion of Form I-9 Due to COVID-19 Remote Work

In response to the growing shelter-in-place orders throughout the US, the Department of Homeland Security (DHS) has announced new provisions that apply only to employers and workplaces that are operating remotely. If there are individuals physically present at the workplace, these new provisions will apply only if the newly hired or existing employees are subject to COVID-19 quarantine or “lockdown protocols.” DHS will review those types of situations on a case-by-case basis.

For all employers who are now operating remotely due to COVID-19, the requirement for a face-to-face interaction to complete the I-9 document review has been temporarily waived. Note, the I-9 must still be completed and the employer must examine Section 2 documents by video link, fax, email or other means where there is a visual inspection of the documents. The employer must retain copies of the documents reviewed. The completion of Section 2 must be done within three business days. Employers may implement these provisions for a period of 60 days from today, “or within three business days after the termination of the National Emergency, whichever comes first.”

Employers who make use of the new provision must provide written documentation of their onboarding and telework policy for each employee.

When normal operations resume, employers will be required to do a physical inspection of the Section 2 documents. At that time employers will be required to enter “COVID-19” in Section 2 as the reason for the physical inspection delay, once physical inspection takes place when normal operations resume.

When normal operations resume, all employees who were onboarded using remote verification must report to their employer within three business days for in-person verification of Section 2 documents. Once the documents have been physically inspected, the employer should add, “documents physically examined,” with the date of inspection to the Section 2 “additional information field” or to Section 3, as appropriate.

In any subsequent audit, the “in-person completed date” would be the starting date for I-9s covered under these provisions. Any I-9 created prior to these provisions or after the resumption of normal operations would use the typical I-9 completion date for audit purposes.

Suspension of Premium Processing Service on Petitions

In the past, petitioners have been able to pay a premium processing fee of $1,440 to have certain USCIS petitions processed within 15 calendar days. Petitions that can be premium processed include Form I-129, nonimmigrant visa petition covering E-1, E-2, H-1B, 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 visas, and Form I-140, immigrant worker petition for certain categories of employment-related immigrant petitions. Effective March 20, 2020, no new requests for premium processing will be accepted for any of the aforementioned categories. All petitions filed and received prior to March 20, 2020 will be premium processed, however any petitions mailed but not accepted prior to March 20 will not be premium processed either. USCIS will return the filing fee and Form I-907 for those filings received after March 20, but will retain and adjudicate the underlying petitions in the usual processing time. Any petitions received before March 20 with premium processing will have fees returned if not adjudicated within the 15 day period.

In addition to the new premium processing guidelines, USCIS will no longer use prepaid mailers sent with petitions. All petitions will now receive batch-mailed notices.

USCIS will advise when premium processing will resume.

H-1B Lottery Continues

At the present time, USCIS has not announced any changes to the H-1B visa lottery for fiscal year 2021, with the exception of premium processing as described above. The new registration period for H-1B lottery petitions ended at noon EST on March 20, 2020. USCIS has indicated random selection of petitions for adjudication will begin and all selected petitions will be notified by March 31, 2020. Adjudication will proceed upon notification.

Nonimmigrant Visa Status and Salary Cuts, Layoffs, Furloughs and US Departure

USCIS has not provided any guidance on special procedures for those who experience salary cuts, layoffs and furloughs due to COVID-19.

As certain visa statuses, including E-1 and E-2 visas, L visas, O visas and TN status, do not require a particular salary level, it is thought that a reasonable salary cut which meets all other federal, local and state requirements would not impact an individual’s temporary visa status.

With respect to E-3 and H-1B visas, because the employer must pay the prevailing wage as noted on the petition’s Labor Condition Application, a salary cut may create an issue for the employer. If the salary cut would drop the individual’s salary below the prevailing wage, the employer can be fined for not paying the wage in accordance with DOL and USCIS regulations. In certain circumstances employers may need to consider filing a new visa petition to amend the petition due to a lower prevailing wage and/or a new job category.

If a nonimmigrant visa holder is not employed and providing the services as noted in the underlying petition, he/she is not considered to be in visa status. Anyone whose employment is terminated prior to the expiration of authorized status is granted a discretionary period of 60 days during which he/she can seek new employment, apply for a different visa category or depart the US. Since ability to return to work or depart the US within 60 days is uncertain now, we may see USCIS provide guidelines to remain in the beyond the 60-day period.

The USCIS policy recognizes that due to certain catastrophes or other emergency situations, an individual in a nonimmigrant visa category may not be able to depart the US in a timely manner. In such cases the individual may apply for an extension or change of status explaining the special circumstance which prevented departure from the US. USCIS may take into account how the special consideration prevented departure from the US. If an individual does not apply for an extension or change of status before the authorized period of admission expires, USCIS may excuse the delay, if due to extraordinary circumstance beyond the individual’s control.

Relief for Those with Expiring ESTA Stays

Under the Visa Waiver Program/ESTA, visitors to the US from certain countries may register on the ESTA site for temporary visits to the US. Such individuals are admitted to the US for periods of 90 days. As a condition of ESTA registration, such individuals may not extend their stay in the US and may not change status to a different visa category while in the US.

Individuals who find themselves unable to depart the US due to COVID-19 are permitted to remain beyond the 90 days only if granted “Satisfactory Departure.” Those individuals who entered the US through John F. Kennedy International Airport (JFK in NY) or Newark International Airport (EWR in NJ) only may contact the Deferred Inspections Office at JFK by calling + 1 718 553 3684 during the hours of 9 am to 4 pm EST Monday through Friday to request Satisfactory Departure of up to 30 days. Those individuals must be within 14 days or less of the expiration of their authorized stay at the time of contacting Deferred Inspections. Individuals or their attorneys will need to provide identifying information including full name passport number and expiration date, date of birth and the original flight itinerary along with a new itinerary.

Individuals who entered the US other than at JFK or EWR should be sure to contact their own port of entry Deferred Inspections office, as each location has its own procedures in place for requesting Satisfactory Departure.

Anyone whose stay has already expired may contact Deferred Inspections. Decisions on whether to grant Satisfactory Departure to such individuals will be made on a case-by-case basis.

No guidance has been provided on whether further periods of Satisfactory Departure will be granted where an individual is not able to depart within the 30 days granted period.

DOL Deadlines, Extensions and Related Issues for E-3 and H-1B Labor Condition Applications, Applications for Prevailing Wage Determinations and PERM Applications

In recognition that COVID-19 has a serious impact on normal operation of businesses, including the ability to meet deadlines, the DOL has indicated extensions will be granted with respect to requests for information and other correspondence regarding prevailing wage determinations and labor certifications e.g. Requests for Information, Notices of Deficiency and Notices of Audit Examination. If a deadline falls between March 13, 2020 and May 12, 2020, a response or submission of documentation will be considered timely if receive no later than May 12, 2020.

With respect to an Application for Permanent Labor Certification (Form ETA-9089 or PERM) applicable regulations indicate most recruiting must be completed 30 days prior to filing. Additionally, employers are required to complete recruiting requirements within a 180 day time frame. DOL will accept recruitment completed within 60 days after the regulatory deadlines have passed, provided the employer initiated recruitment within the 180 days preceding March 13, 2020.

DOL states employers who have already completed recruiting during the required 180 day time frame should file their PERM applications under existing regulatory requirements.

The DOL PERM process requires a Notice of Filing to be posted on the business premises for at least 10 consecutive business days and completed at least 30 days before submission of the PERM application. The Notice of Filing is required to be posted between 180 days and 30 days before the filing. DOL has advised that for businesses impacted by COVID-19, a Notice posted within 60 days after the deadlines have passed will be acceptable, provided the employer initiated its recruitment within the 180 days preceding March 13, 2020.

Under applicable regulations governing E-3, H-1B and H-1B1 employers, an employer is required to provide notice of a Labor Condition Application (LCA) filing to its employees in the occupational classification in the area(s) of intended employment (or notice to a bargaining representative, where one exists.) Where no bargaining representative exists, an employer may provide electronic notice or hardcopy notice to its employees for a total of 10 calendar days. A hardcopy notice must appear in two conspicuous locations at each worksite or place of employment. For electronic notice, employers may use any means ordinarily used to communicate with employees including email, intranet, website, electronic newsletters, etc. If employees are directly notified by email, only one notification is required and not one notice each for each of the 10 calendar days.