COVID-19: Immigration Impact – Update (Part 2)

We note that developments occur rapidly, and ask that you contact Kerr Russell should you or your employees have any questions. While we are working remotely, we are here to help, and provide the below guidance.

For Immediate Action

• It is critically important that those in non-immigrant status review their I-94s (either hard copy in their passport or online). I-94s govern the ability of individuals to remain in the United States, and, if applicable, to work. With tightened travel restrictions, obtaining a new I-94 by simply departing and re-entering the United States is not available. Therefore, we are required to file an extension with the U.S. Citizenship and Immigration Service (USCIS). If an employee discovers that his/her I-94 will expire in the next 60 days and we have not yet reached out to discuss options, please contact us.
• If your Company is considering a layoff or furlough, and you employ non-immigrant workers (H-1B, TN, L-1, OPT, etc.), is critical that you contact Kerr Russell so that we can advise you of the immigration consequences/requirement of these breaks in work. Of primary importance are H-1B furloughs. H-1B employees must be paid their wages even in instances of plant closures, furloughs, holidays, or other periods of nonproductive time. The requirement applies even if U.S. workers aren’t paid during such times. Failure to do so may result in a DOL investigation and a monetary award to the employee. An employer’s obligation to pay its H-1B employees, even for nonproductive time, ends only with bonafide termination.

Updates

• The Department of Homeland Security has announced that during this time, employers are not required to review the original identity and employment authorization documents for I-9 completion, but may do so remotely. The DHS has provided detailed instructions to complete the I-9 in these circumstances.
• USCIS will accept immigration applications and petitions which bear a photocopied original signature. The Service notes that the documents containing the original signature must be maintained, and can be requested by USCIS at any time.
• The U.S. Department of State has suspended routine visa services in most countries worldwide. Scheduled appointments have been cancelled, and applicants will be required to reschedule once normal operations resume.
• Due to the closure of Social Security Administration and employer offices nationwide, the Department of Homeland Security has extended the time frame for individuals to take action on E-Verify Tentative Non-confirmations. We note that employers are still required to E-Verify new employees within three business dates of their hire.
• All local USCIS are closed until at least April 1. All in-person interviews, fingerprint appointments and naturalization ceremonies have been cancelled and will be rescheduled. However, clients have received notifications concerning cancelled appointments for dates past the April 1st deadline.
• USCIS Service Centers, which process non-immigrant visa applications (I-129s), I-140 Immigrant Petitions, and most other immigration benefits, remain operational.
• USCIS temporarily suspended the availability of Premium Processing. Petitions filed via Premium Processing prior to March 19 will continue to be processed in an expedited manner.
• The northern and southern borders are closed for “non-essential travel”. The order does not include those needing to cross the border at legal ports of entry for: commerce, trade, education, first responders, medical or health reasons. The restrictions are set to end on April 20.

For more support and information relating to COVID-19, please visit the Kerr Russell COVID-19 Resource Center. If you have questions relating to this article or other immigration matters, please contact a Kerr Russell attorney.

Kate M. McCarroll has extensive experience in employment-related immigration law, including inbound/outbound immigration, Department of Labor/ Department of Homeland Security audits and I-9 compliance training. Kate has also handled matters involving asylum proceedings,family-based immigration, and criminal and inadmissibility issues.

Miroslava Orduño Rincón has extensive employment-related experience concerning U.S. non-immigrant and immigrant petitions for large international clients. She also processes outbound visitor and work visas, family-based petitions, and naturalization.

Robert S. Anderson counsels and represents clients in the full spectrum of immigration legal issues as applied to their workforce and staff, including all aspects of the international movement of personnel for local, national, and international companies.

Other posts to consider:

• COVID-19: Immigration Impact
• Employer Obligations Arising From COVID-19 (Part 2)
• Paid Leave Under The Families First Coronavirus Response Act