Business Immigration Insights

In response to the COVID-19 crisis, US authorities are announcing a number of significant changes that impact everyone who relies on immigration programs to operate businesses or to live and work in the United States. Companies and their sponsored employees should be aware of the following changes announced within the past week:

US Citizenship and Immigration Services (USCIS)

• Local office closures:  On March 17, 2020, USCIS announced that all local offices, which are normally open to the public, will close and that all routine in-person services at those offices will be suspended through at least April 1, 2020. On March 25, 2020, USCIS extended the closures to April 7. Local office services include interviews for adjustment of status, naturalization and asylum, and appointments for information and biometrics or fingerprinting. Individuals who have pre-scheduled appointments in March should look for cancellation and rescheduling notifications in the mail. Those whose appointments are scheduled for after April 1, 2020, should monitor public announcements and watch for notifications in the mail. Those who require emergency assistance are instructed to contact USCIS at 800-375-5283.
• Regional service centers:  Processing of petitions and applications submitted by mail or courier to a USCIS lockbox or regional service center are not affected by the local office closures. However, see “Premium processing suspended” below.
• Premium processing:  On March 20, 2020, USCIS announced that premium processing for I-129 and I-140 petitions was suspended, effective immediately. If petitions received on or after March 20 requested premium processing, the premium fee will be returned to the sender. USCIS will also return premium fees if the agency cannot complete 15-day processing on petitions received before March 20. The suspension includes FY2021 H-1B cap (“lottery”) petitions. See “H-1B FY2021 lottery” below for additional information.
• Electronic copies of original signatures:  On March 20, 2020, USCIS announced that the agency will accept copies of ink signatures on forms that normally require “wet” (i.e., original) signatures to be submitted. This exception will remain in place for the duration of the National Emergency. This temporary exception is welcome news for signatories of company petitions and their attorneys, who are increasingly working remotely, without easy access to courier services, during the COVID-19 outbreak, and especially welcome because USCIS will notify companies by the end of March if they were selected to submit petitions in the FY2021 H-1B lottery. See “H-1B FY2021 lottery” below for additional information. Under the exception, signatories must still physically sign forms and retain those “wet” signature pages in case USCIS asks for them.Thus, e-signed forms using tablets, software programs, and similar technologies do not satisfy the requirements. Companies should coordinate with immigration counsel on new procedures to take advantage of this policy.
• E-Verify TNC extensions:  On March 20, 2020, USCIS announced that employees will have additional time to respond to Tentative Nonconfirmations (TNCs) and employers must continue to avoid any adverse action against the employee during the extended timeframe. The normal TNC response time is 8 federal government working days. The extension recognizes that employees may need additional time to update their identity or employment eligibility documents if government offices are closed or offering limited services during COVID-19, but no specific timeframe is given and it is not clear if all TNCs are affected.
• H-1B FY2021 lottery: Because H-1B registration – a new process this year – was 100 percent electronic, there is reason to hope results will be announced by March 31, 2020, as promised. However, since regional service centers handle tens of thousands of paper filings every day, it is unclear if USCIS can continue operations at 100 percent during COVID-19 in a manner that ensures the safety of its employees and contractors. USCIS operations may slow down even more under these circumstances. In addition, F-1 students who depend on “H-1B cap gap” for ongoing work authorization have legitimate concerns as to whether their employers’ H 1B petitions, if selected in the lottery, will be adjudicated in time (before October 1, 2020) to avoid an interruption in their work eligibility.

US Immigration and Customs Enforcement (ICE)

• In-person completion of Form I-9 On March 20, 2020, ICE announced that employers who have shifted to remote work may complete Section 2 of Form I-9 by reviewing documents electronically rather than in person, with the employee, as normally required. Employers should work with immigration counsel to adapt current practices and ensure compliance. For a detailed discussion of which workplaces may use this exception, what is still unclear about it, and what other solutions may be available, see our post of March 24, 2020, here.
• Flexibility for working F-1 students: On March 23, 2020, ICE updated guidance to colleges and universities, clarifying that F-1 students may continue to work in CPT status from abroad, as long as their employers either have an office outside the United States or can assess the student’s work and progress electronically.

US Department of Labor (DOL)

• Extended deadlines: On March 20, 2020, DOL released an FAQ  on changes related to COVID-19.  DOL processes both Labor Condition Applications (LCAs) for the H-1B, H‑1B1 and E-3 visa programs and PERM labor certification applications for permanent residence sponsorship.  DOL extended some deadlines for employers to respond to the agency’s requests, to file PERM applications beyond the normal 180‑day recruitment window, and to complete mandatory recruitment.  Since criteria to use these exceptions are complex, employers who may need them should discuss eligibility with immigration counsel.
• PERMs by email: On March 24, 2020, DOL announced that from March 25 through June 30, 2020, the agency will issue certified ETA Form 9089 labor certifications by email instead of the required hard copy by mail.  For this time period, DOL will consider a printed, signed and dated copy of the emailed form to meet the requirement of submitting an “original” labor certification when employers file their I-140 petitions with USCIS.

US Department of State (DOS)

• Embassy and consulate closures: DOS previously suspended most consular services in China, Germany, Italy and other countries hard hit by COVID-19.  On March 20, 2020, DOS further announced that all routine services at consulates and embassies worldwide were suspended until further notice.  Emergency and mission-critical services continue, but how to request such services and what criteria must be met remain unclear.  Nonimmigrant workers who are either outside the United States or plan to travel internationally and who must apply for a visa before returning should monitor the relevant consulate website closely and plan accordingly.
• COVID-19 country-specific information: DOS has provided a website for up-to-date information on the status of the outbreak in every country.  These entries include WHO Global Health Advisory levels, quarantines in effect, border closures, travel restrictions, and contact information for assistance.

US Customs and Border Protection (CBP)

• Border closures: CBP, the agency responsible for inspecting all travelers arriving in the United States by air, sea or land, is enforcing COVID-19 travel restrictions at the northern and southern borders.  See our March 23, 2020, post for detailed information on those restrictions.
• Essential travel at land ports of entry: It is unclear whether travel into the United States from Mexico or Canada by work-authorized nonimmigrants, such as those in H-1B, L‑1 or TN status, will be considered “essential travel” and thus exempted from border closures and travel restrictions.  Consult with immigration counsel before employees depart the United States or their countries of origin to assess their risks of being stranded or refused boarding or admission.
• Port-of-entry adjudications: It is unclear at this time whether CBP will continue to adjudicate TN and L-1 applications for Canadian citizens at preflight inspection stations and land ports of entry. It may be necessary for immigration counsel to check ahead with specific ports before travel arrangements are made.
• Trusted Traveler enrollment: On March 18, 2020, CBP announced  suspension of services at Trusted Traveler Enrollment Centers nationwide, including enrollments for Global Entry, SENTRI and NEXUS.  The suspension will remain in effect until “at least” May 1, 2020.  Global Entry applicants who are already conditionally approved will continue to be enrolled on arrival at participating airports during the Enrollment Center suspension.