The Duane Morris Immigration Team is dedicated to providing the most up to date information and zealous advocacy on behalf of our clients during the COVID-19 emergency. Below we have compiled information from various U.S. agencies on all aspects of travel, USCIS appointments, ICE activities and Removal Proceedings. This post will be updated as changes develop. Duane Morris has developed a COVID-19 Strategy Team which is providing regular updates on all business and employment related matters impacted by the COVID -19 pandemic. A second webinar on Business Continuity Planning for a Pandemic will be held on Wednesday, March 18. To register, click here.
- Topics Discussed Below
International Travel Information
NOTE: U.S. Citizens and Legal Permanent Residents (green card holders) are NOT subject to any of the travel bans. These travelers will be allowed to return to the United States at any time. These travelers are being funneled to 13 airports in the United States, where they are being screened for travel history, COVID-19 symptoms and other factors. U.S. Citizens who are abroad and need assistance can contact the American Citizen Services section of their local consulate.
Travel Bans: Three travel bans have been issued by the United States, and numerous others are in place around the world. For additional information on U.S. travel bans and their exceptions visit the Duane Morris Blog and Alert on these bans. For travelers who have questions, contact immigration counsel to determine the ban's applicability to you and your family members.
- ACLU Fact Sheet: Know Your Rights at the Airport
- AILA Know Your Rights at the Airport for Legal Permanent Residents
Update: How to Request an Exception to the Travel Ban
State advised AILA that requests for exception to the travel restrictions should be presented directly to embassies and consular posts where visa applications will be filed. Each post or the scheduling contractors managing visa appointments for a post should have information concerning applicable procedures. State also advised, however, that the processes and procedures at posts are extremely fluid at this time.
State advised that both State and the Department of Homeland Security (DHS) have authority to adjudicate national interest exceptions. State further indicated that it anticipates that these exceptions will rarely be approved.
To obtain a visa under an exception, applicants will need to contact a visa issuing embassy or consulate and follow the procedures to apply. The procedure for requesting an emergency appointment varies by post. Often the emergency appointment request procedure is part of the online appointment system, but some posts instruct applicants to email them directly. For some posts, visa applicants with urgent travel that qualifies for an exception under the proclamations issued in recent weeks will be directed to https://www.ustraveldocs.com/cn/index.html in order to submit an emergency appointment request. State advised that visas issued on the basis of an exception will be annotated to reflect the exception from the proclamation's travel restrictions.
ESTA Travelers who cannot Depart the U.S. on Time: According to reports from the American Immigration Lawyers Association (AILA), CBP will permit Ports of Entry (including deferred inspection locations) to be contacted by VWP travelers already in the United States who are unable to depart the United States before their period of admission ends. These Satisfactory Departure requests under 8 CFR 217.3(a) are normally made with USCIS, District Directors at local offices. CBP Ports of Entry are working on the mechanism to allow individuals to make these requests. As soon as we have any further information on how the requests can be made we will share it immediately. If you or someone you know is in this situation, contact your Duane Morris Immigration Attorney.
UPDATE: For ESTA Travelers who entered through JFK and EWR and cannot depart on time can contact the Deferred Inspections office at JFK, starting Monday, March 16, 2020, Monday – Friday, 9am to 4pm ET and request Satisfactory Departure for up to 30 days. Individuals or their attorneys will need to provide the affected individual's name, Date of Birth (DOB) and passport information at the time of the request. Individuals and their attorneys may be asked to provide the original departure flight itinerary along with the new flight itinerary. Individuals and their attorneys are permitted to request Satisfactory Departure if the individual's period of stay will expire in 14 days or less from the day he or she contacts JFK Deferred Inspections. If their period of VWP/ESTA admission has expired, the decision to grant satisfactory will be considered on a case by case basis. To contact JFK Deferred Inspection to make the Satisfactory Departure Request use the following numbers : (718) 553-3683 or (718) 553-3684 Monday – Friday, 9am to 4pm ET
ESTA Revocations for persons who are overseas: CBP has confirmed that ESTA registration revocations are a planned action so travelers outside of the United States who are now barred under the COVID-19 Travel Bans do not unnecessarily attempt to travel to the US when they are unable to do so. These revocations are without prejudice and those travelers will be able to apply for ESTA in the future.
Visa Appointment Cancellations: The State Department, so far, has left decisions on visa appointments and consular closures to on-the-ground State Department officials. There have been consulate closures and cancellations of visa appointments. The State Department has created a webpage with links by country to COVID-19 Embassy alerts. For a directory of all U.S. Embassy websites, click here. Cancellations may be on short or no notice to visa applicants. For example, on Friday, March 13, the State Department issued a notice canceling all visa appointments in India starring on Monday, March 16. 2020. Embassies remain open for U.S. Citizens who need emergency services while they are abroad.
- The United Kingdom: The U.S. Embassy in London is canceling routine nonimmigrant and immigrant visa appointments beginning March 17 and until further notice. Those with an urgent matter and who may need to travel immediately can follow the guidance provided at www.ais.usvisa-info.com/en-GB or call +44 20 3608 6998 to request an emergency appointment.
- Canada: The U.S. Consulate in Toronto has started canceling routine nonimmigrant visa appointments.
- South Africa: The U.S. Mission is canceling most nonimmigrant visa appointments from March 16 until May 31, 2020. This does not apply to diplomatic/official visa applications or to immigrant visa applications.
- Amsterdam, Austria, Bahamas, Belgium, Colombia, Denmark, Dominican Republic, France, Germany, India, Ireland, Italy, Philippines, Poland, Spain, Saudi Arabia, Sweden, Switzerland: The U.S. embassies/consulates in these countries are canceling most immigrant and nonimmigrant visa appointments beginning March 16 or earlier and until further notice.
Update: US Embassy in Monterrey, Mexico to Suspend all Routine Operations on 3/18/2020, but will continue processing some H-2 Visa Applications. The following email was sent to H-2 Petitioners on 3/17/2020.
Notice to H-2 Petitioners: In response to the global pandemic COVID-19, the U.S. Embassy in Mexico City and all U.S. consulates in Mexico will cancel routine immigrant and nonimmigrant visa services starting March 18, 2020. This includes both visa interviews at the consulate as well as processing at the Centros de Atención a Solicitantes (CAS).
We intend to continue processing H2 cases but will need to modify our procedures in order to facilitate the social distancing recommended by health authorities. The U.S. Consulate General Monterrey will prioritize the processing of returning H-2 workers who are eligible for an interview waiver. Because limited interview appointments will be available, we may cancel some first-time applicant appointments that have already been scheduled. If circumstances change, we will contact you with additional information.
As a reminder, "returning H-2 workers (IW)" are applicants whose H-2A or H-2B visas have expired in the last twelve months and are now applying for the same visa classification and did not require a waiver the last time they applied for a visa. Please do not make IW appointments for first-time applicants or applicants who require an interview every year due to law enforcement or immigration violations. First-time applications will not be processed if they are submitted as returning applicants.
USCIS Operations and Appointments
USCIS announced at 2:00 PM on 3/20/2020 that Premium Processing services for I-129 (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 (EB-1, EB-2 and EB-3) is suspended indefinitely. Like many of us, USCIS service center operations have gone remote, so it is impossible for the agency to keep up with the demand for premium processing of applications. Read more on the suspension and how it will impact applications here.
All In-Person Appointments Canceled: USCIS has announced that all in-person services including green card and naturalization appointments will be canceled until at least April 1, 2020. The agency's alert is posted below:
USCIS Response to the Coronavirus Disease 2019 (COVID-19)
ALERT: As of March 18, U.S. Citizenship and Immigration Services has suspended routine in-person services until at least April 1 to help slow the spread of Coronavirus Disease 2019 (COVID-19). USCIS staff will continue to perform duties that do not involve contact with the public. However, USCIS will provide emergency services for limited situations. To schedule an emergency appointment contact the USCIS Contact Center.
Visit CoronaVirus.gov for a complete list of CDC travel health notices.
Learn about the Department of Homeland Security's response.
USCIS Service Centers and Application Processing: USCIS Service Centers remain operational. To date no suspension in Service Center Operations has been announced. Similarly all visa extension applications should be submitted on time in spite of this unprecedented national emergency. USCIS has emergency procedures and discretion available for emergent situations. If for any reason you cannot submit a change of status, change of employer or extension petition on time due to COVID-19 or any other reason, contact your Duane Morris Immigration Attorney immediately.
Public Charge and COVID-19: On March 14, 2020, USCIS placed a Coronavirus alert on its public charge page, that begins: "USCIS encourages all those, including aliens, with symptoms that resemble Coronavirus Disease 2019 (COVID-19) (fever, cough, shortness of breath) to seek necessary medical treatment or preventive services. Such treatment or preventive services will not negatively affect any alien as part of a future Public Charge analysis."
I-9 Updates and Best Practices
For those employers who may be on boarding new employees, to date USCIS has not issued any waiver of the physical in-person review of the original documents presented by the employee for completion of the I-9 form. Such waivers have been provided in the past for impacted employers during national emergencies such as Hurricane Katrina. However, employers can deputize any person as the employer's representative to review the original documents and complete Section 2 of the I-9 form. For more information on this option, here is a very good blog post on the issue. It has detailed instructions on how to implement and execute an I-9 policy that involves third parties as the employer's designee. For additional information employers can also visit I-9 Central or review the Employer I-9 Handbook.
Students and Universities
Universities around the United States have been on the leading edge of calls for social distancing, extending Spring Break, suspending in-person classes, moving to full online mode and requiring students to move out of school-housing on short notice. It is estimated that there are one million foreign students in the United States.
The Student Exchange Visitor Program (SEVP) notified the National Association of Foreign Student Advisors ( NAFSA) that SEVP "is committed to remaining flexible in allowing schools to make temporary procedural adaptations so nonimmigrant students can continue to make normal forward progress in their program of study. They can temporarily engage in distance-learning, either from within the U.S. or outside the country, in light of COVID-19. SEVP will provide updated guidance as the scope and length of this situation becomes more clear."
SEVP has issued guidance to all Foreign Student Advisors on COVID-19 procedures. This guidance suspends the normal requirement of advance notice to SEVP of procedural adaptations to education protocols and instead requires notification within 10 days of the change. This loosening of the regulations allows Universities to quickly comply with state and local directives and campus shutdowns. ICE has also added a FAQ for Foreign Students on COVID-19.
H-1B and other Nonimmigrant Worker/Employer Information
H-1B workers are being impacted by business shutdowns and remote work requirements. Due to the unique requirements of the H-1B Labor Condition Application employers must be sure to account for H-1B wage and benching restrictions when making employment decisions. Detailed information is available in our prior Alert. A summary is below.
- Determinations as to remote work availability, vacation and sick time policies, time frames for return to the United States, and benefits eligibility while abroad, should be applied equally to all employees who are unable to return to the United States for virus-related reasons.
- While foreign national employees are outside the United States, their U.S. immigration status has no bearing on an employer's decision to suspend, terminate or allow them to work remotely.
- Employers who allow foreign national employees to work remotely while they are abroad should consider the employment laws of the country where the employee will be performing the work and consult with corporate and tax counsel to confirm that this type of arrangement will not create a "tax presence" in the foreign country thus subjecting the employer to unanticipated consequences in the future.
- Short, unpaid leaves due to required quarantine for H-1B workers would not raise any immigration implications, as long as the leaves are approved and taken according to company policies in place at the time. If leave became extended or went beyond allowable company policies, such that termination was required, the foreign national worker would be in jeopardy of being considered out of legal immigration status and could become subject to removal from the United States.
- Foreign national employees on OPT, STEM OPT, L-1 and TN status, who are required to work remotely during quarantine, should not generally be impacted for short stints of working from home in the United States.
- H-1B regulations allow H-1B employees to work unlimited days in off- site in locations that are within the normal commuting distance from the work location listed on the employer's H-1B Petition. Normal commuting distance is generally considered to be a one-hour commute or less.
- H-1B workers who are working in remote locations that are outside of normal commuting distance would be limited to 60 days in the remote location, before the employer would need to update the H-1B application with a new Labor Condition Application and pay the wage associated with the remote location.
For additional information on all employment-related COVID-19 issues, visit the Duane Morris COVID-19 Alert page.
Immigration Court Hearings
Executive Office for Immigration Review (EOIR) is making announcements about court operations via twitter @DOJ_EOIR. They announced last night that all Master Calendar Hearings scheduled for 3/16/20-4/10/20 will be postponed and rescheduled by the Courts. That means that all individual hearings are still being held, except in Seattle, where the Immigration Court is closed until April 10, 2020. The American Immigration Lawyers Association (AILA), National Association of Immigration Judges (NAIJ) and American Federation of Government Employees Local 511 (AFGE) have jointly called on EOIR to shut down all of the Immigration Courts for two weeks.
Updates for Family Members of Detained Immigrants
ICE Detainee Locator Use this link to find the location of detained foreign nationals. Information required to search includes A-Number and or Name, Date of Birth and Country of Birth. There have been anecdotal reports of COVID-19 confirmed cases at various immigration detention facilities, so detainees could be moved or removed quickly as these scenarios develop.
Visitation at Detention Facilities: All family visits at ICE detention centers have been suspended until further notice. Lawyers will be able to have visits with their clients who are detained, although health screening and other precautions may be instituted on short notice.
Removal of Detainees during the COVID-19 Emergency: ICE confirms that each detainee will be temperature screened at the time of boarding their flight to be removed from the United States. "Any detainee with a temperature of 100.4 degrees or higher will be immediately referred to a medical provider for further evaluation and observation."
ICE Check-In Updates
All-Check-Ins proceeding according to schedule unless otherwise noted. ICE advises that if a person is feeling sick prior to the scheduled check-in, they should contact the local ICE Field Office prior to visiting the office.
Update on Specific Offices:
- Atlanta ICE office seems to be postponing all check-ins until the week of April 13, 2020. If you are scheduled to report between now and then, please wait and report to ICE between April 14 – 16, 2020. (Courtesy of AILA)
- Ohio ICE in Ohio has ceased all check-ins as March 16, 2020. Foreign Nationals are required to report "6 weeks from their next report-in date." (Courtesy of AILA)
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.