The current pandemic has caused unprecedented changes to many aspects of life as we knew it, and immigration is no exception. The public health and economic ramifications of the novel coronavirus are presenting many new questions for immigrants as well as their employers. Some questions, such as whether a laid-off H-1b worker should accept unemployment benefits, do not have an easy answer. That will be explored in a future blog post. However, there are a few recent practical and policy changes that employers and immigrants should be aware of, presented below.
Suspension of Visa Processing Worldwide
The suspension of normal visa processing at U.S. consulates and embassies means that many foreign workers and family members cannot come or return to the U.S. for the foreseeable future, if they need a visa to enter. U.S. consulates and embassies around the world suspended usual immigrant and nonimmigrant visa processing as of March 20, 2020. The U.S. Department of State announced that existing appointments for visas will be cancelled. Most embassies and consulates will continue to provide emergency services, but it is not clear what situations qualify as emergencies. The Visa Waiver, or ESTA program, is still in effect. However, there are few international flights to the U.S. due to the pandemic, so even someone approved for visa waiver entry may not be able to come to the U.S. at this time Consulates and embassies may reinstitute visa processing if the health crisis eases in the coming months. Updates should be provided on travel.state.gov or each embassy’s website.
Human Resources: Procedures for Verification of Employees’ Ability to Work in the U.S.
The Covid-19 health crisis has caused many businesses to switch to all-remote workforces, but this presents challenges for Human Resource personnel. Employers must still complete I-9 forms to verify that their employees are eligible to work, but because so many employees are currently working from home, the Department of Homeland Security (DHS) stated that employers will not be required to review identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the documents remotely and still inspect and retain copies of the documents within 3 business days. For more information on what employers need to do to fully comply with this policy, see ICE’s recent press release.
USCIS Offices are Closed to the Public but Still Accepting Applications for Benefits and Accepts Copies of Signatures.
Obtaining information from USCIS about an immigration application is difficult even in the best of times. During the present lockdowns, applicants cannot gain information about their cases through an Info Pass appointment. Application Support Centers for biometric appointments are also temporarily closed. However, USCIS is still accepting applications for benefits including visa classifications, green cards, naturalization, etc. Because the pandemic has resulted in so many applicants being unable to travel or leave their homes, USCIS will temporarily accept copies of original signatures on forms, where previously it only accepted “wet” or original signature pages. This should make it easier for attorneys and applicants to continue to submit forms for clients who are stuck or isolated abroad, or quarantined, in the U.S.
Employers Take Note: Layoffs, Furloughs or Reductions in Pay May Impact a Foreign Worker’s Ability to Remain in the U.S.
This is currently one of the more complex and ambiguous areas of immigration law, as the economy is in turmoil and layoffs are increasing. Technically, since many visa classifications are tied to a particular employer, once an H-1b, TN or other temporary worker is no longer employed by the petitioner, or is not receiving pay commensurate with the terms of a visa, the foreign national may be considered “out of status” and therefore have to leave the United States if he or she does not immediately obtain another job and submit a new petition. There may be exceptions to this general rule, however.
As with the financial crisis in 2008, USCIS may decide to show some flexibility and use discretion to approve a new petition even if a couple of months have passed and the worker lost the job because of the current extraordinary circumstances, which also make it difficult to find new work. In another example, an artist with “extraordinary ability” whose O-1 visa includes various contracted “gigs” may be able to argue that cancellation of a few of these items due to the pandemic should not be considered as a violation of status when applying for an extension.
Foreign workers in these situation will need to be very careful that they do not accrue 180 days to a year or more of unlawful presence, or they may be barred from re-entering the U.S. for 3 or 10 years once they depart and try to obtain readmission.
Employers across the board are considering reductions in workforce or pay. Reducing a foreign employee’s hours and pay may be permissible in some circumstances, but often requires an amended petition. Employers who are thinking of laying off foreign workers in some capacity should realize that the ramifications for these workers include not only the loss of a paycheck, but the loss of their ability to return to work when the economy improves or to remain in the U.S. at all. Immigrants or employers facing this dilemma should consult experienced immigration and employment law attorneys.
In these stressful times, every day brings a new question - sometimes without answers - about the impact of Covid-19 on immigrants.
- How does the receipt of a loan or unproductive work situation affect a public charge determination for a green card down the road?
- Will foreign students violate OPT rules if they can’t find a job within 90 days due to the economy?
- How should immigrants access the health care system during the coronavirus?
Contact the Immigration Specialists at Woog Law
In today’s rapidly changing immigration climate, it is important to obtain up-to-date information. Contact the immigration attorneys at Woog Law at 908-233-0076 for more information.