The COVID-19 pandemic has created an uncertain work environment with a multitude of immigration-related impacts. Each day, we are witnessing changes to travel bans, visa processing, and immigration interview suspensions. These changes, combined with the need for social distancing to inhibit the spread of COVID-19, have driven employers – voluntarily and involuntarily – to accommodate remote work wherever possible. These work-from-home initiatives, while imperative, may have immigration consequences. As companies respond to workplace issues, it is important to include immigration-related requirements and considerations when crafting remote work policies. Such considerations also factor into creating solutions to economic downturns which include employee layoffs, furloughs, and/or reductions in scheduled hours. In this advisory, we review the immigration compliance implications of the COVID-19 pandemic.
Travel Restrictions to the United States
As has been widely reported, President Trump signed a proclamation on March 11, 2020 restricting entry to the US by foreign nationals who have recently traveled to designated European countries. This limitation on entry to the US has been in effect as of Friday, March 13. The limitation does not apply to US citizens or US permanent residents (Green Card holders). It does apply to most foreign nationals who have been in any of 26 designated European countries, which now includes the United Kingdom and Ireland, during any portion of the 14-day period prior to their scheduled US arrival. Earlier presidential proclamations, still in effect, created similar exclusions for individuals who had traveled to China or Iran.
The latest US travel restriction development, as of this writing, is the announcement of a mutual US-Canada suspension of non-essential cross-border travel. While we focus on the United States, a multitude of other countries have implemented travel restrictions as a strategy for COVID-19 containment. Employers need to consider what this means for their particular workforce and their staffing needs. And, in parallel with the US Department of State Level 4: Do Not Travel Global Health Advisory issued last week, multinational companies have initiated transfers of their employees to avoid family separation and facilitate health care access. US employers face having foreign national employees who are unable to return to the US following travel abroad, and many will have foreign national employees that cannot go home. Employees able to enter the US may face periods of voluntary or mandatory quarantine. In many cases, preexisting plans for employee transfers to the US are on hold.
In addition to travel restrictions, the COVID-19 virus is creating closures and disruptions throughout the US immigration system. Staying abreast of the changes, including any accommodations for this largely unprecedented situation, may be challenging. Employers must continue to be mindful of their immigration-related obligations while continuing to take reasonable and prudent precautions to protect their staff. These considerations span a variety of issues.
We provide some examples of issues companies may be facing below:
Form I-9, Employment Eligibility Verification
The Form I-9 normally requires in-person verification of the identity and employment eligibility documentation of all employees. This form must be completed within three days of hire. Thereafter, it is necessary to re-verify employment eligibility, in-person, prior to the expiration of an employee's employment authorization documentation. I-9 requirements apply uniformly to all employees and violations carry significant potential fines and penalties for employers. During this health emergency, the US Department of Homeland Security (DHS) is permitting employers with appropriate work-from-home policies to defer the in-person, physical presence requirements associated with Form I-9. Employers must instead inspect Section 2 documents remotely (e.g., over video conference, fax, or email) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2 of the I-9 Form. Once normal operations resume, all employees who were on-boarded using remote verification must report to their employer within three business days for in-person verification of identity and employment eligibility documentation. For more information about changes to I-9 requirements during the COVID-19 pandemic, see our related Client Alert.
As companies across the US implement remote work arrangements, employers need to be mindful that certain actions related to the Labor Condition Application (LCA) filed on behalf of H-1B employees may need to be addressed. The same considerations apply to E-3 employees, as remote work was often not contemplated when the H-1B or E-3 case was prepared. If this was the case, the employer’s office location may be the only work address included in the original H-1B or E-3 filing and underlying LCA. There are certain exceptions which allow H-1B workers to work at locations other than those listed in the H-1B petition and LCA. However, if the remote work will continue and cease to fall within exceptions, it may be necessary to take H-1B compliance steps. For work locations outside the geographic area covered by the LCA, it may be necessary to obtain a new LCA and H-1B amendment. In other situations, lesser steps may be sufficient. Employers must consider the possibility of site visits to the intended work location whenever there are work-from-home options available to sponsored employees.
Remote work considerations extend beyond the H-1B and E-3 categories. Employers need to consider the nature of the work and whether its terms can be met via remote work. Trainee visa categories require supervision and often include observational opportunities as part of the training plan. Employers must consider whether and how the terms can be met absent face-to-face interactions.
As companies begin to face economic downturns, they may need to reduce employee hours, put employees on leave, or terminate employees permanently. These steps can trigger immigration compliance issues for sponsored foreign nationals. The H-1B category has strict requirements that prohibit unpaid leave or "benching" due to lack of work. Similarly, this category has specific steps that must be taken to document employment termination and, in turn, the termination of the employer's wage obligations to the employee.
While most other non-immigrant categories do not have these specific types of restrictions, employers need to be mindful of the representations made to the US government to secure the necessary visa approvals for their employees. Deviations from the terms set forth in various immigration petitions and applications can cause immigration issues for both the employer and the employee. Individuals who are not working at all or, in some cases, not working in accordance with the terms of their immigration approvals, may be considered to be out of status. Employers may face penalties as well as difficulties securing future immigration approvals if they are found to have a history of non-compliance.
Sponsored employees facing termination may not be able to return to their home countries or find new US positions. Employers must resist requests to delay termination, if it means violating their obligations and creating risks for the company. The most humane step is to be entirely clear and to provide as much notice and access to reliable guidance as possible. Individuals will need to understand any applicable grace periods, status violation penalties and risks, and available options if they cannot depart the US. Historically, US Citizenship and Immigration Services (USCIS) has made some accommodations during natural disasters and similar events. As of this writing, USCIS has not done so for this aspect of the COVID-19 pandemic
Cancellation of Consular Operations
The US Department of State has suspended routine visa operations at US Consulates. Many visa applicants have received notification of interview cancellations. This means that, in addition to other travel risks, individuals who need visa "stamps" to enter or return to the US may have to remain abroad at this time due to lack of visa services. Once these services resume, substantial backlogs can be expected.
Cancellation and Suspension of USCIS Interviews and Biometric Appointments
USCIS Field Offices suspended in-person interviews as of March 18, 2020. Application Support Centers (ASCs) will also not be taking biometrics. The suspension extends through at least April 1. In the lead-up to this announcement, the Field Offices were issuing cancellations on a piecemeal, discretionary, basis. The Field Offices are still offering limited in-person, emergency services at this time.
The lack of in-person USCIS interviews will create additional backlogs in Adjustment of Status, Naturalization, and other interview-mandated case types. The closure of the ASCs will have broad ranging impact, as biometrics are now required for most case types, including extensions and changes of non-immigrant status. These issues are compounded by significant expansions of the interview and biometric requirements under the current administration.
We note that the USCIS is continuing to accept and process cases and offer all non-public facing services. Of course, they face many of the same workplace challenges as other employers, and we may see additional processing delays for that reason. What is clear, however, is that filings are still possible and often necessary to permit employees to continue to live and work in the United States. We note that it may be necessary to renew Employment Authorization Documents (EADs) for individuals who had been anticipating their Green Cards in short course but are now facing USCIS interview cancellations.
How Will These Changes Work in Practice?
Travel and workplace restrictions, and related suspension of in-person immigration processes are our new normal. While President Trump indicated a 30-day time frame for the European travel ban, the proclamation does not include a date certain for termination. The USCIS interview and biometric suspensions are in place until at least April 1, 2020 – a date that appears quite optimistic in light of increasing restrictions and a daily increase in confirmed COVID-19 cases in the US and globally. Employers must rely on technology to continue operations, and, until there are additional policy changes and guidance, must factor in immigration compliance under existing requirements. Steptoe's cross-disciplinary team of lawyers can help with these new immigration law issues and the countless legal and policy issues that companies are now navigating due to the COVID-19 pandemic. For more information, please visit our COVID-19 Resource Center.