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This alert has been provided by the BAL U.S. Practice Group.
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COVID-19 is slowing immigration processing, with U.S. consulates suspending routine visa services abroad and U.S. Citizenship and Immigration Services (USCIS) temporarily suspending premium processing and in-person services during the national emergency.
Nevertheless, companies that sponsor H-1B, labor certification and other immigration procedures for employees in the U.S. will be able to keep several processes moving and remain in compliance, thanks to new measures introduced by the Department of Homeland Security and the Labor Department.
Relaxed signature requirements
Employers who are enforcing social distancing in the workplace by mandating work-from-home policies are now permitted to file copies of signed USCIS forms during the national emergency. Although the original petition must still be printed and signed with a handwritten “wet” signature and retained, employers will be able to scan or copy (or use a scanner app on a mobile phone) the original signed petition containing the wet signature for submission to USCIS.
Relaxed I-9 verification procedures
Form I-9 verification procedures will also be temporarily eased for certain employers who have implemented telecommuting because of COVID-19. Usually, employers must inspect an employee’s documents in the employee’s physical presence. During the crisis, employers may inspect identity and employment authorization documents remotely via video, fax or email. DHS is allowing remote inspection for employers operating remotely. Notably, however, if any employees are physically present at a work location, the employer must follow normal in-person procedures. Employers who are eligible for the virtual inspection option should strictly adhere to procedures set out in the guidance to ensure that they are in full compliance during the National Emergency and after normal operations resume.
Longer deadlines
The agencies have also automatically extended several deadlines for immigration-related procedures. Employers will have more time to respond to a Notice of Inspection (NOI) issued by DHS. Companies who have not yet responded to an NOI that was issued this month are automatically allowed a 60-day extension from the effective date. At the end of the extension, DHS will decide whether to extend further. Employers now have until May 12, 2020 to respond to certain inquiries by the Labor Department’s Office of Foreign Labor Certification, such as a request for information, notice of deficiency, or notice of audit, if their original deadline to respond fell between March 13, 2020 and May 12, 2020.
Employers will also have more flexible deadlines for completing labor certification application (PERM) recruitment and H-1B Labor Condition Application (LCA) posting requirements. DOL issued guidance giving employers an additional 60 days to complete PERM-related recruitment, provided that the employer started recruitment on or after Sept. 15, 2019, and the PERM application is filed by May 12, 2020. This extension does not apply to employers who already completed recruitment within the normal deadline. Additionally, employers who started recruitment on or after Sept. 15, 2019 have an additional 60 days to post the PERM notice of filing.
Employers may be moving H-1B employees to new locations, such as work-from-home arrangements, because of COVID-19. Normally, the LCA must be posted on or within 30 days before the day the H-1B worker begins working at the new work location, but under temporary measures, employers have up to 30 days after the worker begins work at the new location to post the LCA.
These temporary measures, though modest, are a promising development in that they allow companies flexibility in meeting the competing obligations of social distancing and immigration compliance. It is hoped that the agencies will consider implementing additional measures that would ease immigration processes and compliance during these extraordinary times.
BAL will continue to engage with policymakers and advocate for measures to help clients mitigate delays and protect the health of their employees.
Lynn O’Brien is a Senior Associate in the Northern Virginia office of Berry Appleman & Leiden LLP.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.
As governments continue to grapple with concerns over the COVID-19 virus, and policies around international travel are still in flux, the State Department recently expanded its recommendations that will limit travel for most J-1 international exchange visitors.
U.S. employers that sponsor J-1 exchange visitors should plan to adjust their training schedules and take other actions to comply with new guidelines for affected individuals. Employers who administer their own J-1 program, should pay close attention to upcoming program start and end dates in SEVIS so that appropriate revisions can be made to an exchange visitor’s status and new forms can be generated, as needed.
Since Feb. 7, the agency’s Bureau of Educational and Cultural Affairs (ECA) has recommended restricted travel to the U.S. for exchange visitors who had been in China within the previous 14 days and for those planning to travel back to China before April 1. As of March 6, however, the guidance was expanded to additional exchange visitors who are currently outside the U.S. and those already in the country.
For new exchange visitors who are currently outside the U.S., and who have traveled to China or a country affected by COVID-19 in the past 14 days, sponsors should delay their start date until at least April 1 or later. Sponsors should also issue them a new initial certificate of eligibility (Form DS-2019), which allows them to request an interview at a U.S. consulate abroad. If the exchange visitor has already secured a J-1 visa stamp, the sponsor should issue an amended Form DS-2019 with a start date after April 1. Sponsors should delay the start date of new exchange visitors until they have been outside of the affected country (and are not exhibiting symptoms of the COVID-19 virus) for at least two weeks.
Current exchange visitors who are outside the U.S. may have their records kept in SEVIS until they are able to return to the U.S. and continue with their original program objectives. However, depending on the validity dates of their J-1 visa, they may need to renew their visa before they are able to return to the U.S. If an exchange visitor requests withdrawal, the sponsor may shorten their SEVIS records accordingly.
Employer sponsors should also take action to extend the programs of exchange visitors who are currently in the U.S., but this may require more attention to compliance. According to the State Department guidance, sponsors should reinstate (if necessary) and extend the program for current exchange visitors with a new end date of April 1, 2020. Extensions, however, require that the exchange visitor’s activities remain consistent with the original purpose of travel to the U.S. and should be documented in the extension. Program extensions must also be supported with funding by the exchange visitor, sponsor or other third parties.
It is important that J-1 exchange visitors do not overstay their authorized period of stay as indicated on their Form I-94 record by U.S. Customs and Border Protection. Most exchange visitors are granted J-1 status as long as they remain in status as an exchange visitor, but this is not always the case, and border officials sometimes denote an expiration date on the I-94. The State Department has also said that it is aware that a significant number of exchange visitors who are currently in the U.S. have reached the maximum duration of their program and are not permitted to extend it. Exchange visitors facing these circumstances are encouraged to consider applying for special measures that U.S. Citizenship and Immigration Services offers for those in the U.S. seeking to extend or change their visa status in special humanitarian or extenuating circumstances. Exchange visitors who are subject to the two-year home residency requirement may also be eligible for such relief. As exchange visitors are permitted to remain in the U.S. for up to 30 days beyond their program end date, an extension or change of status should be filed before the 30-day grace period lapses.
Employers with exchange visitor programs should anticipate significant delays in start dates for new exchange visitors, including the need to reschedule visa interviews. Employers sponsoring current exchange visitors should move to extend their programs with appropriate documentation of funding and compliance with program requirements. Additionally, sponsors should review and assess I-94 expiration dates and determine whether their current exchange visitors will need to apply to USCIS to extend or change their visa status under special humanitarian measures.
Lucrecia Davis is Senior Counsel in the Houston office of Berry Appleman & Leiden LLP.