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Immigration Updates: Coronavirus Disease 2019 (COVID-19) Impacts on Foreign Nationals

Action: Premium Processing Suspended

What does this mean?  Premium processing has been suspended for all I-129 and I-140 petitions.  This means that H-1B transfers and extensions (along with O-1, L-1, and TNs, among others filed with USCIS) will not be approved in an expedited manner.  The stated processing times are between 2-10 months for an H-1B, for example.  Please check  the USCIS website, as times vary between service centers.

How may this impact me?  H-1B transfers who wish to start on approval notices will be delayed.  If an employee needs the I-140 approval for a 3-year H-1B extension, that will be delayed.  Extensions of driver’s licenses may be denied if that state will not extend due to the Coronavirus (COVID-19).

Action:  USCIS Offices Closed Until April 7 (for now)

What does this mean?  All USCIS offices in the United States will be closed including field offices, Application Support Centers, etc.  So far, this does NOT include USCIS Regional Service Centers that have been processing I-129, I-140, and other petitions remotely.

How may this impact me?  Employees’ biometrics appointments and adjustment of status interviews, for example, will be postponed until USCIS reopens its offices.  This may result in the delay of EAD issuance as EADs may not be approved without biometrics.

Action:  USCIS Will Accept Copies of Signatures for Petitions and Applications

What does this mean?  USCIS will accept signatures on forms that have been scanned, faxed, or photocopied.  The copy or scan must be made from an original signature.  The originally signed document must be retained in case USCIS wishes to request the original at a later time.  Currently, there is no end date to this revised policy.

How may this impact me?  In continuing to file petitions at the USCIS Service Centers, you may sign a form, then either email or fax it back to your attorney for the filing. The original, signed document must be retained in case USCIS requests it at a later date.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES (DHS)

Action:  CBP Will Extend ESTA Pursuant to a Request for Satisfactory Departure

What does this mean?  For foreign nationals who arrived in the United States utilizing the Electronic System for Travel Authorization (ESTA), U.S. Customs and Border Control (CBP) is allowing those travelers to request Satisfactory Departure at the port of entry if there are COVID-19 issues preventing the person from leaving in a timely manner. If Satisfactory Departure is granted, an extension of 30 days should be given and the person may not be considered to have violated any overstay provisions.

How may this impact me?  If you have a foreign national in the United States as a business visitor who entered in ESTA, he or she may not be able to depart the United States prior to their expiration because of travel restrictions.  In this case, the person may see if CBP at their port of entry will adjudicate a Satisfactory Departure request.  Thus far, John F. Kennedy International Airport, Newark Liberty International Airport, and Raleigh-Durham International Airport airports will adjudicate these, or Deferred Inspection may be contacted.

I-9 AND TENTATIVE NONCONFIRMATIONS

Action:  DHS Relaxing Guidelines on Form I-9

What does this mean?  DHS will allow employers to review documents remotely to complete Section 2.  The employer should annotate this correctly and examine the documents physically once the office reopens.  Review the full DHS guidelines.

How may this impact me?  You will no longer need to rely on an authorized representative or agent (if you do not typically use one), but instead, you can review the documents remotely to complete the Form I-9.  If you choose to continue to use an authorized representative, please remember that you are responsible and liable for that person completing the Form I-9 correctly.

Action:  E-Verify Case Creation and Delayed TNCs

What does this mean? Employers may still create cases for new hires; if this is delayed, COVID-19 must be entered as a reason.  In the case of a TNC, and because Social Security Administration (SSA) offices are closed, the timeframe to resolve TNCs will be extended.

How may this impact me?  Because of the extension given, employers may not take any adverse actions against the employee if the E-Verify case has a TNC or is in an interim case status.

DEPARTMENT OF LABOR

Action:  PERM Filing and Audit Deadlines Extended

What does this mean?  PERM filing deadlines will be extended by 60 days.  Responses to Notices of Audit will be extended until May 12, 2020, if the audit was received after March 13, 2020.

How may this impact me? For example, if the recruitment has expired, the PERM filing deadline will be extended by 60 days.  Delayed recruitment must have started on or after Sept. 15, 2019 and the PERM must be filed by May 12, 2020.

Action:  Notice of Filing Posting Requirement Extended

What does this mean?  Notice of Filing postings can be posted within 60 days after the deadlines have passed – if the recruitment was initiated within 180 days of March 13, 2020.

How may this impact me?  This is a hard copy posting notice- the relaxed guidance may allow you to post the notice when the office/worksite reopens if it is within the designated timeframe.

Action:  Certified PERMs Will Be Emailed

What does this mean?  The approved (certified) PERM will be emailed to the attorney of record to print, have signed, and then filed with the I-140 petition.

How may this impact me?  You may not need to worry about the certified PERM being lost in the mail.  Guidance is forthcoming on whether the original, wet signature will be required on the certified PERM for the I-140 filing.

Action:  Labor Condition Applications (LCAs) Should Still Be Posted to Submit

What does this mean?  A hard copy notice should still be posted prior to submitting the LCA.  The working conditions should still comply with the LCA.

How may this impact me?  The posting requirement has not been relaxed, and companies that cannot post hard copy notices may look into an intranet option.  Furthermore, because the working conditions must still comply with the LCA, employees who are not working in the office due to office closure will need a new LCA if the address is outside the metropolitan statistical area (posting is timely if placed within 30 days of the “move”).  If the short-term placement provisions apply, then employers may use that option.

DEPARTMENT OF STATE

Action:  The Majority of U.S. Consulates Have Been Suspended

What does this mean?  Most U.S. consulates around the world have suspended processing for nonimmigrant and immigrant visa applications.

How may this impact me?  If you have an employee waiting abroad to apply for a nonimmigrant visa to enter the United States, this may be delayed.  Similarly, if you have an employee in the United States who needs to “activate” a status, this may also be delayed.   

CONGRESS

Action:  Congress has been considering language that would automatically extend expiration dates for certain visas and EADs.  

What does this mean?  There has been language proposed in bills to extend expirations for certain visa types and work authorization documents that have upcoming expirations. 

How may this impact me?  The latest proposed language will extend certain statuses that fall within a timeframe for expiration.  NOTE: this has not passed yet.

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About this Author

Kristen Ng, Greenberg Traurig Law Firm, Nortrhern Virginia, Immigration Law Attorney
Associate

Kristen W. Ng focuses her practice on business immigration and compliance matters. She advises individuals and companies on a wide range of immigration matters, including nonimmigrant and immigrant employment-based cases, citizenship issues (acquisition, retention and relinquishment) and investor cases (E-2 and EB-5). She communicates directly with clients, including HR managers, high-level executives, and employees to ensure comprehension of each respective immigration process and procedure and to collaboratively produce the best immigration strategy and approach for...

703-749-1388
Laura Foote Reiff, Greeberg Traurig Law Firm, Washington DC, Northern Virginia, Labor and Employment, Immigration Law Attorney
Shareholder

Laura Foote Reiff Co-Chairs the Business Immigration & Compliance Practice and is the Co-Managing Shareholder of the Northern Virginia Office. She also Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. Laura focuses her practice on business immigration laws and regulations affecting U.S. and foreign companies, as well as related employment compliance and legislative issues.

Laura advises corporations on a variety of compliance-related issues, particularly related to Form I-9 eligibility employment verification matters. Laura has been involved in audits and internal investigations and has successfully minimized monetary exposure as well as civil and criminal liabilities on behalf of her clients. She develops immigration compliance strategies and programs for both small and large companies. Laura performs I-9, H-1B and H-2B compliance inspections during routine internal reviews, while performing due diligence (in the context of a merger, acquisition or sale) or while defending a company against a government investigation.

Laura represents many businesses in creating, managing and using "Regional Centers" that can create indirect jobs toward the 10 new U.S. jobs whose creation can give rise to EB-5 permanent residence for investment. She coordinates this work with attorneys practicing in securities law compliance, with economists identifying "targeted employment areas" and projecting indirect job creation, and with licensed securities brokers coordinating offerings. She also represents individual investors in obtaining conditional permanent residence and in removing conditions from permanent residence.

703-749-1372
Martha Schoonover, Greenberg Traurig Law Firm, Northern Virginia, Immigration Law Attorney
Shareholder

Martha J. Schoonover focuses her practice on business immigration matters and assists employers in obtaining temporary, nonimmigrant visas for business persons, managers and executives, treaty investors and traders, professionals (including researchers and scientists, engineers, computer professionals, and business professionals), exchange visitors, students, and crew members working on the Outer Continental Shelf. In addition, Martha assists in obtaining labor certifications and permanent resident status for professionals, researchers, multinational managers and...

703-749-1374