Resumen de las medidas migratorias de EE. UU. en respuesta a la pandemia del nuevo coronavirus

Section 1: U.S. Presidential Proclamations

I.  What is the impact of the Presidential Proclamations on individuals seeking entry into the U.S. from China, Iran, and Europe? 

According to Presidential Proclamation 9984 [issued on January 31, 2020] and Presidential Proclamation 9992 [issued on February 29, 2020], President Trump suspended entry of certain immigrant and nonimmigrant foreign nationals who were physically present within China [excluding Hong Kong and Macau] and Iran 14 days prior to their entry into the U.S.  While the U.S. entry prohibition does not apply to U.S. citizens, U.S. lawful permanent residents and any foreign national who is the spouse/child of a U.S. citizen or lawful permanent resident, Proclamation 9984 does state that U.S. citizens who are traveling from the Hubei province in China within 14 days of arriving to the U.S. will be subject to up to 14 days of mandatory quarantine.  

Just 11 days after the issuance of Proclamation 9992, on March 10, 2020, President Trump signed Presidential Proclamation 9993 suspending the entry into the U.S. of foreign nationals who hold an immigrant or nonimmigrant visa and who have been physically present in certain European countries during the 14 days prior to their scheduled arrival to the U.S.  For purposes of this Proclamation, these European countries, known as the Schengen Area, include: 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.  Subsequently, on March 14, 2020, President Trump issued an additional Presidential Proclamation equally suspending the entry into the U.S. of foreign nationals who hold an immigrant or nonimmigrant visa and who have been physically present in the UK and Ireland during the 14 days prior to their arrival to the U.S. 

II.  Are U.S. citizens and permanent residents allowed to return to the U.S. from China, Iran, the Schengen Area countries, the UK, and Ireland?  I am a U.S. citizen, but my immediate relative is not.  Can they travel to the U.S.?

Yes.  The Presidential Proclamations do not apply to U.S. citizens, U.S. lawful permanent residents and foreign nationals who are immediate family members [i.e., spouses and minor children] of U.S. citizens or lawful permanent residents.  However, the U.S. Department of Homeland Security (DHS) has issued instructions requiring U.S. passengers that have been in China, Iran, the UK, Ireland and the Schengen Area countries to travel through 13 select airports where DHS has implemented enhanced screening procedures [please see Item III. next page].  When re-entering the U.S., the Centers for Disease Control and Prevention (CDC) requires all travelers, including U.S. citizens and legal permanent residents, who have been in the previous countries in the last 14 days to self-quarantine for 14 days.  

III.  When re-entering the U.S. from China, Iran, the UK, Ireland and the Schengen Area countries, am I required to travel through particular airports or undergo enhanced screening?  What are those airports and what screening can I expect?

Under the previously mentioned Presidential Proclamations, the U.S. President has instructed the U.S. Secretary of Homeland Security to establish standards and procedures at all U.S. ports of entry to regulate the travel of persons and aircraft to the U.S.  This measure aims to facilitate the medical screening and quarantine of persons who enter the U.S. and who may have been exposed to the coronavirus.  To implement this mandate, on March 2, 2020, DHS announced that all inbound U.S. flights with individuals [including U.S. citizens, lawful permanent residents, and foreign nationals exempt from the Presidential Proclamations] who have recently traveled from, or were otherwise present within, one of the countries designated in the Presidential Proclamations only land at one of the following U.S. airports.  DHS has implemented health protocols at these airports to account for treatment and handling of individuals who might have contracted coronavirus.  This requirement excludes crew and flights carrying only cargo.  The designated airports include the following locations:

1. John F. Kennedy International Airport (JFK) in New York
2. Chicago O’Hare International Airport (ORD) in Illinois
3. San Francisco International Airport (SFO) in California
4. Seattle-Tacoma International Airport (SEA) in Washington
5. Daniel K Inouye International Airport (HNL) in Hawaii
6. Hartsfield-Jackson Atlanta International Airport (ATL) in Georgia
7. Newark Liberty International Airport (EWR) in New Jersey
8. Dallas/Fort Worth International Airport (DFW) in Texas
9. Detroit Metropolitan Airport (DTW) in Michigan
10. Los Angeles International Airport (LAX) in California
11. Washington-Dulles International Airport (IAD) in Virginia
12. Boston Logan International Airport (BOS) in Massachusetts
13. Miami International Airport (MIA) in Florida

Upon arrival to the U.S., travelers will proceed to Customs and Border Protection (CBP) processing with an enhanced medical interview.  If not symptomatic from coronavirus, CBP will permit travelers to go home, but they must self-quarantine for 14 days.  If symptomatic for coronavirus, CBP will refer travelers to the CDC for further medical evaluation.  Please be mindful that DHS may modify the above list of affected airports according to evolving needs.

IV.  Do the Presidential Proclamations affect airline carriers?

Airline carriers should be mindful that the Immigration and Nationality Act provides that it is unlawful for commercial carriers to transport improperly documented aliens to the U.S.  Accordingly, CBP has announced that airline carriers that transport foreign nationals subject to the Presidential Proclamations “may be subject to a carrier fine for each alien brought to the United States.”  Further, CBP advises airline carriers to implement measures to comply with the Presidential Proclamations and direct questions about the scope of implementation, including the authorization for any foreign national to board a U.S. inbound aircraft, to the appropriate CBP Regional Carrier Liaison Group “for adjudication prior to aircraft departure.”  CBP has made available the following Regional Carrier Liaison Group contact information:

Section 2:  The Visa Waiver Program (VWP)/ Electronic System for Travel Authorizatoin (ESTA)

I.  What is the impact of Presidential Proclamation 9993 on the Visa Waiver Program (VWP)/ Electronic System for Travel Authorization (ESTA) travel into the U.S.?

In conformity with Presidential Proclamation 9993, entry into the U.S. is suspended for foreign nationals who have been “physically present” within a Schengen Area country within 14 days of travel to the U.S.  CBP has announced that any foreign national with a valid ESTA who is subject to Presidential Proclamation 9993 and who attempts to travel to the U.S. in violation of the Proclamation will have his or her ESTA canceled.  ESTA will not refund application cancellations due to violations of Presidential Proclamation 9993.  Please note that ESTA cancelations do not preclude a foreign national from re-applying for ESTA.  CBP has announced that foreign nationals whose ESTA is cancelled “solely because of the Proclamation” will be eligible to re-apply for ESTA, including payment of all applicable fees.  For purposes of Proclamation 9993, CBP has noted that physical presence “necessarily include direct travel from, and transit through,” the Schengen Area countries, meaning that foreign nationals will be subject to the Proclamation’s restrictions if they have transited through a Schengen Area country, even if they did not enter it.  Notwithstanding, if you are a passport holder of a Schengen Area country with a valid ESTA and have not been in a Schengen Area country within 14 days of your travel to the U.S.—including “departing from or transiting through” the Schengen Area—then you are not subject to Proclamation 9993.  For additional information about the impact of Proclamation 9993 on ESTA holders, please visit CBP’s ESTA “Frequently Asked Questions” page. 

II.  What is the impact of Presidential Proclamation 9993 on VWP/ESTA foreign nationals admitted into the U.S. whose period of admission is about to expire?

According to CBP, ESTA holders currently in the U.S. who are unable to depart by the end of their authorized period of stay [foreign nationals can lawfully stay in the U.S. under ESTA for up to 90 days] due to an emergency may seek relief by applying for a Satisfactory Departure request.  A request for Satisfactory Departure can be made to U.S. Citizenship and Immigration Services (USCIS) and CBP [including deferred inspection locations] to extend the U.S. admission of a foreign national for up to 30 days—provided that the request is made during the period of admission and the foreign national is still in status at the time of the request.  A determination as to whether Satisfactory Departure can be granted is discretionary and on a case-by-case basis.  CBP will consider if the foreign national had a chance to depart and chose to remain in the U.S. despite the emergency.  As such, it is important to amass supporting documentation proving the foreign national’s inability to timely depart the U.S., including but not limited to, a medical doctor letter, a flight cancellation notification, an original flight itinerary, a government notice from a destination country not accepting travel from the U.S., among others. 

Section 3: U.S. Border Closings of the U.S.-Canada and U.S.-Mexico Land Borders

I.  What are the implications of closing the U.S. border for Canadian and Mexican TN and L-1 visa holders?

On March 21, 2020, the U.S. and Canada issued a joint statement closing the U.S.-Canada land border to “all non-essential” traffic.  The statement defined non-essential travel as “travel that is considered tourism or recreational in nature” such as sightseeing, recreation, gambling or attending cultural events.  Similarly, on March 20, 2020, the U.S. and Mexico issued a joint statement closing the U.S.-Mexico land border to “all non-essential” travel.  The U.S.-Mexico joint statement also identified “non-essential” travel as “travel that is considered tourism or recreational in nature.”  The Canada and Mexico border closing restrictions apply only to land ports of entry, not to air, sea, or rail travel.  For purposes of the U.S.-Canada and U.S.-Mexico border closings, DHS has stated that essential travel includes individuals “travelling to work” in the U.S., which should include foreign nationals on employment-based TN and L-1 status.  Most CBP ports of entry are, for the moment, continuing to process L-1 and TN visa applications as usual.  Nonetheless, L-1 and TN visa applicants should expect detailed questioning at the port of entry about their L-1 and TN employment activities in the U.S., especially questions regarding the essential nature of their U.S.-based employment activities. 

Section 4: Consular Processing of Immigrant and Nonimmigrant Visa Applications

I.  Has the U.S. Department of State (DOS) suspended immigrant and nonimmigrant visa services? 

As of March 20, 2020, the DOS temporarily suspended all routine immigrant and nonimmigrant visa services at all U.S. Embassies and U.S. Consulates due to the coronavirus outbreak.  According to the DOS, “embassies and consulates will continue to provide emergency and mission critical visa services,” as well as consular services to U.S. citizens.  For country-specific information about available U.S. consular services, visit the list of embassy websites compiled by the DOS.  The DOS has confirmed that there is no fee to change the date of a consular appointment and visa application fees are valid for one year in the country where the fee was paid.  Accordingly, visa applicants will be able to reschedule their visa interview appointments for no additional fee.  The DOS has not confirmed when it will resume routine immigrant and nonimmigrant consular visa services.

II.  What happens if my immigrant visa is expiring soon and I cannot travel to the U.S. due to a coronavirus-related travel restriction?

According to 22 CFR 42.72(a), U.S. Consulates can issue immigrant visas for a period of validity no longer than 6 months.  Nonetheless, the DOS is allowing U.S. Consulates to reprint the visa foil number of immigrant visa holders who cannot travel to the U.S. due to the coronavirus travel restrictions, provided that all their supporting visa documents [i.e., police certificates, medical examinations, etc.] are current.  If these supporting documents expire while the immigrant visa holder is waiting to be able to travel to the U.S., he or she will be required to obtain new supporting documents before the issuance of a new visa foil number.  

Section 5: Student Visas and Online Education

I.  How has the coronavirus pandemic affected F and M student visa holders?

On January 29, 2020, the Student and Exchange Visitor Program (SEVP) issued a broadcast message providing guidance on how schools should respond to F and M international students and dependents who 1) are currently either outside or inside the U.S. and 2) are exhibiting coronavirus symptoms.  For initial foreign students, SEVP recommends schools with first-time foreign students who are in impacted places [i.e., China] or who are exhibiting symptoms of coronavirus to delay program start date and to issue a new initial Form I-20, Certificate of Eligibility for Nonimmigrant Student Status.  In the case of enrolled students exhibiting symptoms of coronavirus, schools may authorize a medically reduced course load and register the student in the Student and Exchange Visitor Information System (SEVIS) for a medically reduced course load with “no course load.”  Furthermore, schools should advise enrolled students who are currently outside the U.S. suffering from coronavirus to avoid travelling to the U.S. until they can enroll full-time.  In cases of absences exceeding the five-month limit, schools should provide a detailed explanation to SEVP Response Center at [email protected] for a “case-by-case” basis resolution.  Based on these SEVP guidelines, schools must continue to ensure that F and M students maintain their nonimmigrant student status, even during emergency events related to coronavirus illness.  

II.  What are SEVP’s guidelines regarding online classes for F and M international students?  Has SEVP issued Optional Practical Training (OPT)-specific guidelines?

On March 9, 2020, SEVP issued a new broadcast message stating that it will be “flexible with temporary adaptations” to school curriculums [i.e., temporary school closures and online classes] affecting international students, as schools across the U.S., including New York University, Harvard University and the University of Washington, have switched to online classes.  Generally, students on F visas can only take one course online per semester and students on M visas for vocational training cannot take online classes.  However, SEVP is temporarily allowing online classes for F and M visa holders—either from within the U.S. or outside the country—if schools notify the Agency “of procedural adaptations within ten business days of the change.”  Accordingly, if a school closes temporarily but offers online instruction, international students on F and M status should participate in online or other alternate learning procedures to remain in active status in SEVIS.  Moreover, the new measures allow students that have temporarily left the U.S. [i.e., returned to their home country] to take online classes from elsewhere.  Please note that this temporary provision is only in effect throughout the duration of the coronavirus emergency and in accordance with the procedural requirements that SEVP has delineated.  SEVP has not addressed student visa repercussions in case schools completely shut down.

Additionally, SEVP encouraged recent graduates under OPT to work with their companies to find “alternative ways to maintain employment,” such as “teleworking or other arrangements.”  However, internationals students must continue to report their employment information to ensure they do not accrue days of unemployment in their SEVIS record.

III.  Are international students still required to remain enrolled full time even though classes are online for the remainder of the semester?

Yes.  To maintain lawful F and M student status, foreign students are required to maintain a full load of online classes, unless the school has expressly approved a medically reduced course load or a leave of absence. 

IV.  I am a graduating F student who cannot find OPT employment.  What are my options if I cannot find OPT employment within 90 days of the start of my post-graduation OPT period?

Graduating international students cannot accumulate more than 90 days of unemployment during the first 12 months of post-completion OPT.  They are also required to work full-time [a total of at least 20 hours per week] in a qualifying position [a position related to the student’s degree program].  The economic downturn resulting from the coronavirus pandemic will likely create added challenges for international students finding post-graduation OPT employment.  In such circumstances, international students should consider the following types of employment that are allowed under OPT (NON-STEM version): 

Multiple employers:  A student may work for more than one OPT employer, as long as all employment positions are related to the student’s degree program and he or she meets the 20 hours per week minimum requirement.  The ability to work for multiple employers may bolster the chances of foreign students finding OPT employers.

Self-employed business owner:  Enterprising international students on OPT may start a business and be self-employed.  SEVP Policy Guidance requires that the self-employed international student “must be able to prove that he or she has the proper business licenses and is actively engaged in a business related to the student’s degree program.”  This indicates that self-employed international students on OPT status must lawfully form a business, secure a Federal Employer Identification Number (EIN), and obtain all necessary business licenses to comply with SEVP guidance.  Additionally, self-employed international students must work full-time performing business activities related to the student’s major. 

Unpaid employment:  An international student may work as a volunteer or unpaid intern.  Unpaid work is permissible if it does not violate any labor laws and is 20 hours per week. SEVP mandates that international students provide evidence “to verify that the student worked at least 20 hours per week…” including job offer letters and employment agreements, job descriptions, copies of work assignments, pay stubs, bank statements showing direct or corresponding deposits from OPT employer(s), and copies of IRS W-2 tax forms. 

Work for hire:  Under OPT guidance, an international student can work as an independent contractor [commonly referred to as “1099 employment”] where he or she performs a service based on a contractual relationship rather than an employment-based relationship.  The international student should be able to provide evidence demonstrating the duration of the contract periods and information about the OPT contracting company.

V.  I am student on OPT and I have been furloughed by my OPT employer.  What are my options to maintain OPT status?

In the case of international students in one-year post-completion OPT employment authorized status, they cannot accrue more than 90 days of unemployment under OPT and must work at least 20 hours per week to be considered employed.  According to SEVP Policy Guidance, each day [including weekends] during the period “when OPT authorization begins and ends that the foreign student does not have qualifying employment counts as a day of unemployment.”  To date, SEVP has yet to issue guidance regarding OPT students that have been furloughed due to the economic downturn resulting from coronavirus.  However, on March 9, 2020, SEVP issued a broadcast message encouraging recent graduates under OPT to work with their companies to find “alternative ways to maintain employment,” such as “teleworking or other arrangements.”  SEVP Policy Guidance allows international students employed on the one-year, post-completion version of OPT to consider unpaid employment.  Unpaid work is permissible for the students employed on the one-year (NON-STEM) version of OPT, if it does not violate any labor laws and is at least 20 hours per week.  As such, OPT students may be able to maintain their OPT status if they are able to arrange with their companies to treat the furlough period as “unpaid employment,” using it as a permissible “alternative way to maintain employment.”  

By comparison, those international F students employed under the two-year STEM degree-related version of OPT may accrue up to 150 days of unemployment during their whole period of OPT [including the one-year, post-completion period prior to the STEM OPT period], and must work at least 20 hours per week to be considered employed.  Also different from the one-year version of OPT post-graduation employment, these students cannot have periods of “unpaid employment”.  According to SEVP Guidance, “[e]mployers must provide STEM OPT students with compensation that is comparable to that of U.S. workers who perform similar duties and have similar educational and professional experiences…[h]owever, compensation for STEM OPT students is not limited to a traditional salary.  Employers may also choose to compensate STEM OPT participants for other costs, including: Housing, Tuition waivers, [and/or] Transportation.” 

Section 6: Coronavirus Impact on USCIS Field Offices and Service Centers

I.  I have a scheduled interview appointment at a USCIS field office.  How do I reschedule my appointment?

As of March 18, 2020, USCIS suspended all routine in-person services at its field offices until April 7, 2020 to stop the spread of coronavirus.  USCIS domestic field offices will send notices with instructions to foreign nationals with scheduled interview appointments or naturalization ceremonies impacted by this closure.  USCIS will automatically reschedule foreign nationals with scheduled interview appointments once normal operations resume.  

II.  I have a scheduled biometrics appointment at an Application Support Center (ASC).  How do I reschedule my appointment?

USCIS suspended biometrics appointments at ASC offices.  When USCIS resumes normal operations, it will automatically reschedule ASC appointments.  Foreign nationals with previously scheduled ASC biometric appointments should receive a new appointment notice by mail within 90 days after normal ASC operations resume. 

On March 30, 2020, USCIS announced that it will reuse previously submitted biometrics information to process Form I-765, Application for Employment Authorization, extension requests.  Specifically, applicants who had an appointment scheduled with ASC on or after the March 18, 2020 ASC closure or has filed an I-765 extension will have their application processed using previously submitted biometrics.  This measure will remain in effect until ASCs are reopen to the public.

III.  I have a scheduled naturalization oath ceremony.  How do I reschedule my oath ceremony?

USCIS has temporarily suspended naturalization oath ceremonies.  Foreign nationals with pending naturalization oath ceremonies should receive a new appointment by mail within 90 days after USCIS resumes normal operations. 

IV.  Can I still file immigrant and nonimmigrant visa petitions/applications with USCIS Service Centers?  Is premium processing service available?

Currently, USCIS’s five regional Service Centers [California Service Center, Nebraska Service Center, Texas Service Center, Vermont Service Center, and Potomac Service Center] have continued to process immigration applications and petitions, including employment based nonimmigrant petitions [i.e., H-1B, L-1, O-1, etc.], petitions for alien relative, immigrant petitions for alien workers [i.e., EB-1 alien of extraordinary ability, etc.] and adjustment of status applications among others.  While regional USCIS Service Centers have remained operational, companies and individuals should be prepared for temporary closures due to the coronavirus pandemic.  As coronavirus continues to spread across the U.S., the likelihood that USCIS employees get infected increases, which will severely hamper the capacity of USCIS Service Centers to process thousands of immigration petitions and applications.  In case of systematic closures of USCIS Service Centers, companies and individuals should expect to see significant delays, even a halt, on immigration petition and application adjudications.  While it is difficult to predict USCIS’s likely response in such a scenario, it is probable that USCIS will continue to adjudicate petitions and applications, albeit at a much slower rate.  USCIS has already shown signs of slowing down.  On March 20, 2020, USCIS has suspended premium processing for all I-129, Petition for Alien Worker [E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-1 and TN-2], and I-140, Immigrant Petition for Alien Worker [EB-1, EB-2 and EB-3], until further notice.  Please recall that premium processing guarantees processing of the previous nonimmigrant and immigrant visa petitions within 15 calendar days for an additional $1,440 filing fee.  In light of looming USCIS Service Center closures, it is important to highlight the need for swift petitions/applications filings, as well as extensions filings with USCIS to avoid coronavirus-related backlog. 

Section 7: USCIA Guidance for Request for Additional Evidence (RFE) and Notice of Intent to Deny (NOID)

I.  What are the new developments impacting RFEs and NOIDs?

On March 30, 2020, USCIS announced that it is adopting a new measure to help applicants and petitioners who are responding to RFEs, NOIDs, NOIRs (Notice of Intent to Revoke), and NOIT (Notice of Intent to Terminate) or appealable decision within the Administrative Appeals Office (AAO) jurisdiction [i.e., Form I-290B, Notice of Appeal or Motion] dated between March 1, 2020-May 1, 2020.  According to USCIS, any responses submitted to an RFE, NOID, NOIR, or NOIT “received within 60 calendar days after the response due date set forth in the request or notice will be considered by USCIS before any action is taken.”  Additionally, USCIS Forms I-290B “received up to 60 calendar days from the date of the decision will be considered by USCIS before it takes any action.”

Section 8: Nonimmigrant Employment-Based Visas

I.  Is teleworking allowed for H-1B visa beneficiaries?  What are the notice obligations of H-1B employers in case of teleworking?

Yes.  According to a March 20, 2020 DOL communication, teleworking is allowed if the H-1B employee is working within the same area of intended employment/metropolitan statistical area (MSA) included in the worker’s Labor Condition Application (LCA).  As defined at 20 C.F.R. § 655.715, MSA is “the area within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be employed.  There is no rigid measure of distance which constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas (e.g., normal commuting distances might be 20, 30, or 50 miles)…”  Please note that 20 C.F.R. §655.732(a) provides that employers must afford H-1B workers with working conditions “on the same basis and in accordance with the same criteria as it affords to its U.S. worker employees.”  As a result, if an employer allows U.S. workers the option to work from home, the employer must also afford this option to H-1B employees.  

In terms of notice, USCIS guidance only requires an amended H-1B petition if the employer is required to file a new LCA.  In the March 20, 2020-dated communication, the DOL also confirms that employers do not need to file a new LCA, if there are no changes in the “terms and conditions” of the H-1B employment.  

II.  Due to the impact of coronavirus, can I move H-1B employees to a different worksite location? What are my notice obligations?

According to the March 20, 2020 DOL communication, employers with an approved LCA may move workers to other worksite locations without needing to file a new LCA, if the new worksite location is “within the same area of intended employment covered by the approved LCA.”  However, if the move to a new worksite location includes any material change in the “terms and conditions of employment,” the employer is required to file an amended H-1B petition with USCIS.  For H-1B employees working on a different worksite location, employers are required to provide notice “on or before the date” H-1B employees commence work at the new worksite location.  The DOL will consider the notice timely “when placed as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite locations.”

III.  Are H-1B employers allowed to move H-1B employees to a worksite location outside the area of intended employment included on the H-1B worker’s approved LCA?  What are my notice obligations?

Yes.  The DOL has allowed movement of H-1B workers to unintended worksite locations outside the area(s) of intended employment listed on the LCA [i.e., outside of commuting distance] subject to the short term placement provisions found in 20 CFR 655.735.  If the H-1B placement exceeds the limitations outlined in the regulation, then the H-1B employer must file an amended H-1B petition.

IV.  I intend to file an LCA and I cannot provide a hard-copy notice of the LCA filing due to the coronavirus outbreak.  How do I comply with DOL notice requirements?

Per 20 CFR § 655.734, employers could provide notice to workers electronically through means ordinarily used to communicate with their employees about job vacancies [i.e., website, company’s intranet, electronic newsletter, direct email, etc.].  Additionally, regulations also provide that where the company’s employees lack computer access, hard copies of the notice may be given individually to each worker [i.e., hard copy mailing].  Please be mindful that the notice must comply with the notice provisions of 20 CFR 655.734 and the employer must document and retain evidence of the notice in its public access file in accordance with 20 CFR 655.760.

V.  Can an employer furlough an H-1B employee?  Does an employer need to continue to pay the required wage set forth in the H-1B worker’s LCA?

According to 20 CFR § 655.731, H-1B workers must be paid their regular wages [the full wage as it was listed on the H-1B worker’s LCA that was part of their last H-1B petition filed], even while in a “nonproductive” status.  Employers are not required to pay H-1B visa employees if the “nonproductive” status is for reasons unrelated to employment/company-based decisions [i.e., worker’s voluntary absence from work, hospitalization, absence to care for sick relatives, etc.].  Accordingly, employers have to pay H-1B workers in periods of mandatory company-wide furloughs.  Otherwise, an employer could be subject to fines, back wage obligations, and debarment from the DOL’s temporary and permanent immigration programs, which will prohibit USCIS from approving immigrant and non-immigrant petitions filed by the employer.  Unless otherwise prohibited by state law or the paid sick provisions of the new Families First Coronavirus Response Act [which took effect on April 1, 2020], employers are allowed to require furloughed H-1B workers to use their accrued paid time off.  Notwithstanding, if the furlough is prolonged, employers are required to continue paying H-1B employees their regular wages throughout the furlough period.  The employer’s obligation to pay for furlough time ends in case of a bona fide termination of H-1B employment.  Please recall that the employer is required to notify USCIS that the employment relationship has been terminated, so that the petition is canceled.

VI.  Is an employer required to pay the required wage if the H-1B employee is afflicted with coronavirus and consequently unable to work?

As mentioned before, 20 CFR 655.731 does not require an employer to pay the required wage “if an H-1B nonimmigrant experiences a period of nonproductive status due to conditions unrelated to employment…”  Nonetheless, if the employer’s workplace policies require an employee afflicted with coronavirus to remain in quarantine at home, it is likely that the employer must continue to pay the employee because the employer, not the employee, created the quarantine workplace policy.  The employer should also be aware that it could also be subject to payment under the Family and Medical Leave Act or the Americans with Disabilities Act.

VII.  What steps does an employer have to take if it wants to convert an H-1B employee from full-time to part-time status?

An employer seeking to convert a full-time H-1B employee to part-time status must file a new LCA to reflect this change.  Please recall that once a new LCA is required, the employer is required to file an amended H-1B petition.  USCIS permits the employee to commence part-time employment upon the receipt of the H-1B petition.

VIII.  Are employment-based visa holders such as H-1B, TN, O-1, E-1, E-2 and L-1 eligible for unemployment benefits?

According to 8 CFR 214.1(l)(2), all U.S. employment-based visas are necessarily tied to active U.S. employment, meaning that if the visa holder is terminated he also loses his valid nonimmigrant status in the U.S.  The regulation provides for a post separation of employment, a 60-day grace period to remain in the U.S. to find a new employer and/or arrange to leave the country.  Accordingly, unemployment benefits would seemingly only apply to the employment visa beneficiaries detailed in the regulation and only for that 60-day period. 

IX.  Are terminated spouses and/or eligible dependents [unmarried children under the age of 21] of nonimmigrant visa holders [i.e., J-2, E-2, L-2, etc.] eligible for U.S. unemployment benefits?  Are they considered a public charge if they avail themselves of U.S. unemployment benefits, thus prejudicing future U.S. immigration benefits? 

Terminated spouses and/or eligible dependents of nonimmigrant visa holders are eligible for U.S. unemployment benefits.  USCIS does not consider unemployment benefits in the public charge inadmissibility determination as they are “earned benefits.”  As such, an eligible dependent can avail of unemployment benefits without fear that this will prejudice future adjustment of status applications.

Section 9: U.S. Department of Labor (DOL) Coronavirus Guidance

I.  Can I request an extension to deadlines or other reasonable accommodations if I missed a deadline due to coronavirus?

The Office of Foreign Labor Certification (OFLC) has advised employers that if they are unable to timely respond to a request for information and other correspondence regarding pending applications for prevailing wage determinations and labor certification [i.e., Requests for Information, Notices of Deficiency, Notices of Audit, etc.] due to coronavirus-related emergencies, they can request an extension and provide the reason for the extension.  If the specific deadline to respond to DOL’s request falls within the period from March 13, 2020-May 12, 2020, the employer’s response will be considered timely if received by the appropriate National Processing Center (NPC) no later than May 12, 2020.  In relation to the recruitment effort of Application for Permanent Labor Certification (PERM) (Form ETA-9089), OFLC will accept recruitment completed within 60 days after the regulatory deadlines have passed, provided that the “employer initiated its recruitment within the 180 days preceding the President’s emergency declaration on March 13, 2020.”  In the case of employers who have already completed the recruitment steps during the required 180-day timeframe, they “should continue to file their application(s) under existing regulatory requirements.”  For additional information, please refer to the DOL’s “COVID-19 Frequently Asked Questions.” 

II.  I am seeking to submit a PERM (Form ETA-9089).  Due to the impact of the coronavirus pandemic, I may need to temporarily close my offices or shift to telework.  How do I comply with DOL notice requirements to post the Notice of Filing (NOF)?

Under 20 CFR 656.10(d), the NOF must be posted for at least 10 consecutive business days and completed at least 30 days before the date on which the employer submits Form ETA-9089.  Additionally, employers must post the NOF during the same period as the employer conducts its recruitment efforts [between 180 days and 30 days before filing the Form ETA-9089].  Due to the coronavirus pandemic, the OFLC will accept NOFs “posted within 60 days after the deadlines have passed…provided that the employer initiated its recruitment within the 180 days preceding the President’s emergency declaration on March 13, 2020.”  For additional information, please refer to the DOL’s “COVID-19 Frequently Asked Questions.” 

III.  What is the DOL process for issuance of electronic PERMs in response to the coronavirus pandemic?

The OFLC announced that beginning on March 25, 2020 and running through June 30, 2020, the Atlanta National Processing Center (ANPC) will be issuing PERM labor certification documents electronically in response to the coronavirus pandemic.  If there is a delay, the attorney should contact the PLC Helpdesk via email ([email protected]) to notify the agency that the email containing the PERM labor certification documents was not received and request that it be resent. 

Section 10: Employment Verification Form I-9

I.  How can I complete Form I-9 in remote work scenarios?

According to applicable Form I-9 guidance, all new employees must complete Section 1 of Form I-9 on or before the first date of employment for pay.  The employer cannot complete Section 1 of Form I-9.  The employer is legally required to complete Section 2 of Form I-9 within three business days of hire [or on the first day of work for pay if the duration of employment will be three days or less].  Regulations also mandate employers to timely complete Section 3 of Form I-9 when re-verification is necessary.

In case of teleworking, employers are still required to provide the new hire with Form I-9 and Form I-9 instructions to complete Section 1 on or before the date of hire.  Under teleworking conditions, the American Immigration Lawyers Association (AILA) is advising employers to authorize an agent [authorized representative] to act on the employer’s behalf to complete Section 2 or re-verify employment authorization.  AILA recommends that the agent record the document information on the Form I-9 and sign his or her name as “agent” for the employer, dating the form and filling in all form fields as appropriate.  To document that the agent is acting on the employer’s behalf, AILA further advises to send clear written instructions for the agent, delineating the scope of the agent’s obligations, including current CDC guidelines relating to “reduction of the risk of virus transmission.”  Additionally, employers should designate someone to be on the phone or present via webinar to observe the Form I-9 process and confirm that the agent is acting appropriately.  Employers should be mindful that any mistakes made by the agent will be attributed to the employer.

In cases of coronavirus-related quarantine, the only person available to act as agent on behalf of the employer may be a family member or health care provider.  While it is lawful for these people to act as an agent of the employer, AILA recommends employers evaluate if it is preferable to wait to complete Section 2 of Form I-9 until the employee is able to meet with the employer in person to complete the form.  When an employer uses an agent to complete Section 2 of Form I-9, the employer should review the form at the earliest opportunity and take any required corrective action [noting when changes were made and by whom on the face of the document].  Please note that Immigration and Customs Enforcement (ICE) has advised AILA that the law requiring physical inspection of documents for Form I-9 purposes is still in effect.  As such, if an employer cannot find anyone to verify a remotely hired employee, you cannot verify the documents through Skype, Zoom, or other online video outlet.

II.  What additional documentary requirements should employers follow for Forms I-9 created during the coronavirus pandemic?

According to 8 CFR §274a.2(b)(2), Form I-9 must be retained for the entire duration of each individual’s employment plus at least one additional year [three years from the date of hire or one year from the date of termination, whichever is later].  AILA recommends employers file a memo for all Forms I-9 created during the coronavirus pandemic.  This memo should explain the circumstances for creation of Forms I-9 that resulted in untimely practices and/or practices that are outside of an employer’s regular protocol, including attaching government advisories [i.e., CDC guidelines, Presidential Proclamations, local ordinances, etc.] and explaining who was affected, what steps were taken and where relevant documentation can be found.  During AILA’s Spring 2020 Conference, ICE stated that it will consider the totality of the circumstances if inspecting Forms I-9 created during this period in a future audit.  In prior meetings with AILA, ICE also confirmed that in emergencies, employers should prepare a memorandum reflecting the circumstances of the emergency for ICE’s evaluation in the event of an inspection or investigation.

III.  Does suspension of employer operations affect the employment verification requirements?

Yes.  If a business is closed, Form I-9 requirements are tolled because it is not considered a “business day” for Form I-9 purposes.  The employer should note this on the Form I-9 and in the file-attached memo, otherwise it will appear that the Form I-9 was not timely completed.