November 29, 2020

Volume X, Number 334

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March 2020 Immigration Alert

The Coronavirus and Its Impact on U.S. Immigration

In last month’s Alert, we provided notice of the Trump administration’s presidential proclamation that indefinitely barred foreign nationals (not U.S. citizens or permanent residents (i.e., green card holders) and their immediate family members) from entering the United States if they had visited China within 14 days prior to their attempted U.S. entry, to curb the spread of the 2019 novel coronavirus in the United States. The ban began on February 2, 2020, at 5 p.m. (EST) and is still in place today.

On February 29, 2020, the Trump administration issued another proclamation to extend that same ban to those foreign nationals attempting to enter the United States if they had visited the Islamic Republic of Iran during the 14-day period preceding their attempted entry into the United States.

Just recently, the Trump administration further expanded that ban to foreign nationals traveling from the Schengen Area. The Schengen Area consists of 26 European countries, including Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland. The Schengen Area ban will become effective as of March 13, 2020, at 11:59 pm (EDT).

Although not amounting to an indefinite ban, the U.S. Department of State (“DOS”) has provided a Level 3 Travel Advisory for South Korea. Under Level 3, the DOS recommends that all travelers reconsider their plans to travel to South Korea, if possible. As of the date of this Alert, South Korea has not been placed on an indefinite ban, unlike China, Iran, and the Schengen Area.

With the coronavirus spreading, many companies are taking measures to have their employees work from home. However, working from home could negatively affect the status of employees who are under H-1B, H-1B1, and E-3 status. H-1B, H-1B1, and E-3 visa status holders all require certified Labor Condition Applications (“LCAs”) on Form ETA-9035 that are specific to work locations. Whenever such work location changes, the LCA must be posted in two conspicuous areas at the new work location for at least 10 consecutive business days, which excludes weekends and holidays—provided that the work location change, such as working from home, 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, H-1B1, or E-3 employee can work from his or her home is 10 business days. 

If you are uncertain whether an H-1B, H-1B1, or E-3 employee’s work location is within “commuting distance” from his or her home, please contact an Epstein Becker Green attorney to seek confirmation. 

Update Regarding USCIS’s New FY 2021 H-1B Cap Electronic Registration Tool 

Our last three alerts discussed U.S. Citizenship and Immigration Services’ (“USCIS’s”) rollout and updates regarding the implementation of its H-1B Electronic Registration Tool for the upcoming fiscal year (“FY”) 2021 H-1B cap. Since March 1, 2020, when the new H-1B Electronic Registration Tool was implemented, our office has reported no issues or glitches with the system. However, we have heard cases where the system falsely stated that some attorneys were “not eligible to practice law” when the client received a request to confirm the attorney’s representation. This issue has been reported to USCIS, and the agency is correcting it. 

For now, no other issues have been mentioned, and the foregoing schedule remains intact: 

  • February 24: Employers may begin creating myUSCIS H-1B registration accounts

  • March 1: Registration period opens

  • March 20: Registration period closes

  • By March 31: USCIS conducts the lottery and electronically notifies selected registrants

  • April 1: Filing period begins for selected cases ONLY within a 90-day filing period 

Reminder of USCIS’s Rollout of the New Form l-9 

USCIS has updated its Forms I-9 to the 10/21/19 edition date. All employers are required to start using this version no later than May 1, 2020. For now, employers may use either the previous edition, dated 07/17/17, or the new 10/21/19 version to verify new hires or re-verify current employees requiring employment re-verification. 

USCIS Incorporates New Forms That Implement the Trump Administration’s Public Charge Requirements 

Since the U.S. Supreme Court ruled in favor of the Trump administration’s rule changes to the public charge requirements, all U.S. immigration forms filed with either USCIS or the DOS require more in-depth documentation evidencing that no foreign national will be a public charge in the United States. This includes companies sponsoring employees for such employment-based visas as H-1B, TN, L-1, E-3, and O-1, as well as permanent residency employment-based I-485 applications for adjustment of status. If processing with USCIS, the agency will take a totality view to determine if any foreign national has or will likely be a public charge. For employment-based I-485 applications, USCIS has added the new Form I-944, which requests specific information regarding the employee’s prior filed taxes, health insurance maintenance, and credit report, and if any local, state, or federal benefits were ever incurred. As we continue to prepare USCIS forms with the public charge notification requirements, we will discuss in future Alerts the effect of this rule change.

©2020 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume X, Number 73
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About this Author

Jang Hyuk Im, epstein becker green, labor, employment
Member

JANG HYUK IM is a Member of the Firm in the Labor and Employment practice, in the firm's San Francisco office. For more than a decade, he has advised and assisted companies in a wide range of immigration and other employment-related matters.

Mr. Im:

Counsels employers in securing all documentation, visas and permits necessary to facilitate the admission of individuals in temporary working visa classifications into the United States

Assists clients to retain these foreign nationals as full-time...

415-399-6067
Patrick G. Brady, epstein becker green, labor employment, erisa, wage
Member

Patrick G. Brady is a Member of the Firm in the Labor and Employment practice, in the firm's Newark office. He has worked extensively on complex wage and hour and other employment litigation and ERISA, WARN Act, and Family Leave Act matters.

Mr. Brady's experience includes:

Representing employers in class action and collective action litigation involving FLSA/state wage and hour issues

Representing employers in wrongful discharge, sexual harassment, breach of contract, discrimination/...

973-639-8261
Jungmin Choi, Employment, Labor and Workforce Management, Immigration Law, Epstein Becker and Green, Law Firm
Member

Jungmin Choi is a Member of the Firm in the Employment, Labor & Workforce Management practice, in the Newark office. She concentrates her practice on employment-based immigration law. In 2016, Ms. Choi was recommended in The Legal 500 United States, for Immigration.

Ms. Choi's experience includes:

  • Advising employers in variety of industries on business-related immigration matters involving the recruitment, hiring, transfer, and retention of foreign nationals in the United States
  • ...
973-639-5226
Senior Counsel

ARIT BUTANI* is a Senior Attorney in the Immigration Law Group, in the San Francisco office of Epstein Becker Green.

Mr. Butani:

  • Provides strategic counsel to clients of all sizes and from various industries—including software companies, biotechnology companies, architecture firms, financial institutions, manufacturing companies, brand marketing companies, entertainment companies, IT consulting firms, and staffing agencies, among others—on all aspects of immigration
  • Advises on a wide range of business immigration issues, including PERM, PERM...
415-399-6026
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