Coronavirus Raises Tough Immigration Issues For Businesses
Coronavirus raises a host of difficult immigration issues for U.S. businesses, including the status of H-1B visa holders and international students, obtaining I-9 verification for new employees and travel restrictions that limit mobility for international personnel.
Below is a look at important immigration issues facing businesses during the current health crisis.
H-1B and L-1 Visa Holders: H-1B denial rates have reached historic highs during the Trump administration, according to a National Foundation for American Policy analysis. That raises crucial immigration issues if an H-1B petition is denied, particularly for an existing H-1B employee.
“Employees are in a jam. Many employers now prohibit domestic and international travel, and the U.S. government itself is discouraging travel to certain countries,” said Lynden Melmed, a partner at Berry Appleman & Leiden (BAL) and former chief counsel for USCIS, in an interview. “But the employees violate immigration laws if they stay put after an H-1B petition is denied. U.S. Citizenship and Immigration Services (USCIS) could fix this by instructing officers not to deny cases for workers in the U.S. unless there are serious violations of law. USCIS could also make it easier for companies to reapply without forcing the employee to leave the United States.”
BAL has recommended, if an employee becomes out of status, to consider refiling the H-1B petition and asking USCIS to excuse the failure to maintain status based on COVID-19 preventing the employee from departing the country. BAL notes, “A request will be stronger if the company can document that the employee would have been required to travel to a country where COVID-19 is widespread or if the individual or family members are at a greater health risk.”
One positive development for companies: BAL has confirmed with USCIS that the agency does not plan to conduct site visits at company office locations that have closed due to coronavirus.
Some employers may be uncertain how switching to remote work may affect the status of an H-1B or L-1 visa holder. “For an H-1B employee, an amended petition or LCA [labor condition application] should not be required as long as the employee is working in the same capacity and within typical commuting distance of the work location on the original petition and LCA,” according to William Stock of Klasko Immigration Law Partners. “For L-1s, as long as they are temporarily working from home, in virtually the same capacity, an amended petition is not required.” L-1 visa holders denied an extension face similar dilemmas about leaving the United States as H-1B visa holders.
What would be a policy solution for H-1B visa holders who have reached their 6-year limit? “For H-1B visa holders who have ‘maxed out,’ a possible solution is a period of voluntary departure for 30 days for all employees whose nonimmigrant status is expiring within that time, similar to what has been done for the Electronic System for Travel Authorization, under which it is called ‘satisfactory departure’ and is limited to 30 days,” said Stock. “Persons with voluntary departure would not have employment authorization (unless separately granted in individual cases), but they would remain lawfully present in the United States for the period granted. USCIS would be protecting people from the future consequences, such as visa ineligibility, of what would otherwise be unlawful presence in the United States.”
The difficulty in gaining appointments at U.S. consulates means companies may want to consider switching to USCIS processing for L-1 petitions for intracompany transferees, note attorneys. “Many U.S. consulates worldwide will cancel nonimmigrant and immigrant visa appointments beginning March 16 and until further notice, including consulates in India, Paris, Dublin and Madrid,” according to the Fragomen law firm. “Once consulates resume normal operations, applicants will be able to reschedule appointments. Further cancellations and other reductions in consular services are expected in the coming days.”
International Students: “It is important that F and M students maintain their nonimmigrant student status, even during emergency events,” Immigration and Customs Enforcement (ICE) said in a recent statement. ICE directed students to “work with employers to maintain practical training agreements.” The statement added, “Changes to workplace requirements may impact nonimmigrant students engaging in practical training. SEVP [Student and Exchange Visitor Program] encourages such students to consult with their employer to seek alternative ways to maintain training agreements, such as teleworking or other arrangements.”
For universities and international students, ICE said in a March 9, 2020, message it intended to be flexible during the current academic year: “SEVP recognizes that the COVID-19 crisis is fluid and rapidly changing. For that reason, SEVP is not requiring prior notice of procedural adaptations, leaving room for schools to comply with state or local health emergency declarations. However . . . SEVP must be notified of procedural adaptations within ten business days of the change. This guidance applies to students who are currently enrolled in a program of study and is not intended for new or initial students who are outside the United States.”
Note: On March 20, 2020, the Department of Homeland Security (DHS) announced “flexibility in requirements related to Form I-9 compliance.” I-9 is the federal form used to verify a new employee’s identity and employment authorization. The article has been updated below to include comments from Michael Neifach explaining the new policy.
I-9 Verification: “Where an employer is forced to shut down onsite operations due to COVID-19, DHS has announced that employers unable to physically inspect original documentation of employees will be allowed to inspect the Section 2 documents remotely,” said Michael Neifach, office managing principal of the Washington, D.C. Region office of Jackson Lewis P.C. and a former general counsel of ICE, in an interview. “The DHS announcement specifically provides that remote verification may be made over video link, fax or email, or other similar means, and that the employer must ‘obtain, inspect and retain copies of the documents.’ Employers will still need to inspect the documents remotely within three business days of the first day of work.
“In addition, DHS indicates that within 3 business days of normal operations resuming, employers will need to physically inspect the original documentation. Employers will then specifically note in the ‘Additional Information’ field in Section 2 of the I-9 that ‘documents physically examined’ with the applicable date of inspection, and include ‘COVID-19’ as the reason for the physical inspection delay in the Section 2. The same procedures are applicable for reverifications of documents at Section 3 of the I-9.
“Importantly, DHS provides that remote inspection by video, email, fax, or other means only applies to employers and workplaces that are operating remotely. Where employees continue to be physically present at a work location, the current DHS guidance explicitly provides no exceptions will be made for in-person verification of identity and employment eligibility documentation. However, recognizing that there may be situation where newly hired employees or existing employees may be subject to COVID-19 quarantine or lockdown protocols, DHS indicates it will evaluate these situations on a on a case-by-case basis.
“DHS clearly specifies that it is allowing remote verifications as a matter of prosecutorial discretion only, and that employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee and that burden rests solely with the employer. DHS adds that employers may still have the new hire complete Section 1 of the I-9 remotely and designate a third party as an employer’s authorized agent to verify the original documents and complete Section 2 of the I-9.” Neifach notes the employer remains liable for any errors made by the authorized agent.
“DHS also announced that effective March 19, 2020, any employers who were served an ICE Notice of Inspection requesting I-9s during the month of March 2020 and have not already responded will be granted an automatic extension for 60 days from the effective dates,” said Neifach. “At the end of the 60-day extension period, DHS will determine if an additional extension will be granted. DHS indicates it will monitor the ongoing emergency situation provide updated guidance as needed.”
Options for International Personnel: If an employee needs to come to the United States but has been in a country currently facing one of the administration’s coronavirus travel restrictions – as of March 13, 2020, these countries included China, Iran and European countries in the Schengen Area – then one option might be for the individual to travel and remain in a country not subject to the U.S. travel restrictions.
In theory, going to another country could allow an employee to pass the 14-day period designated in the travel ban. However, the challenge is the travel ban could be broadened to include new countries. During his March 13, 2020, press conference Donald Trump suggested the ban could extend to the United Kingdom – and the next day Vice President Mike Pence announced the ban would, in fact, be expanded to the U.K. and Ireland.
Coronavirus does not respect borders. Companies will need to address the immigration issues coronavirus has created or risk making a bad situation worse.
Published: 16 March 2020