U.S. Immigration Alert: Impact of COVID-19 on I-9s and Immigration Processing; USCIS Completes H-1B Lottery

Department of Homeland Security (DHS)

• DHS has relaxed the I-9 physical presence requirements for remote hires. Under the I-9 rules, employers must review original identity and work authorization documents for every new hire in the physical presence of the employee within three days of the start of work. In light of the current national emergency, the agency has announced that it will temporarily defer the physical presence requirement of the I-9 and permit employers to comply with the process using remote technology. This option is available only to employers that have instituted remote work arrangements. For I-9s executed during this time, employers will be required to conduct physical inspection of the original documents after normal operations resume.
• E-Verify has extended the timeframe for the resolution of tentative nonconfirmations (TNCs). E-Verify has extended the timeframes to take action to resolve TCNs that are due to Social Security Administration or U.S. Citizenship and Immigration Services (USCIS) office closures. If E-Verify case creation is delayed due to these closures, employers should select “Other” from the dropdown list and enter “COVID-19” as the specific reason.

USCIS

• USCIS has completed the H-1B lottery for FY 2021. On March 27, 2020, USCIS announced that it had completed the H-1B lottery for registrations received for the FY2021 H-1B cap. USCIS will be updating the registrations in its online registration portal by March 31 as notification of which employees have been selected. We will notify clients regarding next steps after we receive notifications for employees selected in this year’s H-1B lottery.
• USCIS has extended deadlines for responses to requests for evidence (RFEs) and notices of intent to deny (NOIDs). For all RFEs and NOIDs dated between March 1 and May 1, 2020, USCIS will accept responses submitted within 60 days after the response deadline set forth in the RFE or NOID.
• USCIS has suspended premium processing for all I-129 and I-140 petitions until further notice. As of March 20, 2020, USCIS will no longer accept premium processing requests for Form I-129 nonimmigrant petitions or Form I-140 immigrant petitions. Premium processing requests received by USCIS prior to March 20, 2020, will continue to be adjudicated within the 15-day processing period. To minimize the risk of potential gaps in a nonimmigrant employee’s status due to processing delays, employers should file extension petitions as early as possible during this time.
• USCIS has suspended all routine in-person services at USCIS offices until at least April 1, 2020. This suspension includes biometrics appointments, INFOPASS appointments, adjustment of status interviews and naturalization ceremonies. USCIS field offices will send notices to applicants and petitioners with scheduled appointments affected by the suspension. Appointments will be automatically rescheduled once USCIS resumes normal operations. Emergency in-person services will remain available in limited circumstances.
• USCIS is temporarily accepting copies of original signatures. For the duration of the COVID-19 national emergency, USCIS will accept forms and documents with electronically reproduced original signatures. During this time, employers and foreign nationals can return signed forms and documents by printing the document, signing it and emailing a scanned copy of the document with the original handwritten signature. This modified signature policy will simplify the execution and transfer of petition documents by employer signatories and foreign national employees who are working remotely during this period. Employers must maintain the original signed documents and provide them to USCIS at a later date if requested.

U.S. Department of State (DOS)

• DOS has suspended all routine nonimmigrant and immigrant visa services at U.S. embassies and consulates. At this time, all U.S. consular posts are closed for regular visa services. Emergency visa services will remain available on a case-by-case basis and in accordance with the guidelines of each individual consular post. Employers should instruct foreign national employees to refrain from traveling internationally for visa stamping until further notice. The agency has not announced a timetable for the resumption of regular visa services, which will likely vary by consular post.
• DOS has issued the highest-level travel warning for all U.S. citizens. On March 19, 2020, DOS issued a Level 4 Travel Advisory for U.S. citizens. The advisory stated that all U.S. citizens abroad should make immediate arrangements to return unless they intend to remain outside the United States for an indefinite period. The DOS website now has a special webpage with country-specific links addressing health services, visa issuance policies and other travel information. Please consult this link and embassy-specific websites prior to planning any international travel, but note that given the fluid nature of the situation, some country links may not contain the most recent policy announcements.

Customs and Border Protection (CBP)

• Travel restrictions between the United States and Canada and Mexico. The United States has entered into agreements with both Canada and Mexico to limit travel across the respective borders to “essential travel.” Essential travel to the U.S. includes travel to work, attend school or receive medical treatment as well as travel by U.S. citizens and permanent residents returning to the country from abroad. Although travel to the United States for “work” falls under the CBP definition of “essential,” it is unclear at this time whether all CBP ports will continue to process L and TN nonimmigrant applications during this period. These restrictions are effective until April 20, 2020, but the date is subject to change.
• Travel restrictions for travelers from certain countries. President Donald Trump has announced that until further notice, foreign nationals will be denied entry into the U.S. if they have been physically present in certain countries, including China and most countries in Europe, in the 14 days preceding their attempted entry. These restrictions do not apply to U.S. citizens, permanent residents, their spouses and children under 21, and certain other family members. Waivers from the travel ban are available in certain circumstances, including where a foreign national’s work will contribute to the containment of COVID-19 or is otherwise in the national interest. The Sidley Immigration Team is available to assist in drafting waiver applications for eligible situations.

Department of Labor (DOL)

• DOL is allowing delayed labor condition application (LCA) postings for certain H-1B or E-3 workers who are required to change worksites or work remotely. For the duration of the national emergency, DOL will allow employers to post an LCA filing notice up to 30 days after an H-1B or E-3 worker begins work at a new worksite, including for remote work at home, provided that the new worksite is within the “normal commuting distance” of the worksite listed on the LCA. This is a temporary suspension of the regulatory requirement that the employer post the notice on or before the worker begins work at a new worksite. This accommodation is particularly beneficial to employers with H-1B or E-3 employees who are required to work from home due to office closures or other business disruptions. Where an employee’s home or other new worksite is located beyond the normal commuting distance of the worksite listed on the LCA, a new LCA and amended H-1B petition continues to be required. Please contact a member of our team to discuss changes to the employment of foreign national workers, including worksite changes, salary or hours reductions, furloughs, layoffs and other changes to the terms of employment to ensure that your company continues to comply with LCA obligations and other requirements during this period. Consideration of these issues is particularly important in light of the growing number of state and local “shelter in place” orders. The Sidley team is actively tracking these orders and is available to advise employers regarding the associated impact on their businesses.
• DOL has extended deadlines for PERM labor certification applications and responses to audits. DOL has extended the 180-day PERM recruitment window by 60 days for all applications that are filed by May 12, 2020. The new 240-day PERM recruitment window applies to any recruitment initiated between September 15, 2019, and March 13, 2020. DOL has also granted automatic extensions of deadlines for responses to certain DOL processes, including PERM audit responses and requests for reconsideration of prevailing wage determinations. Where PERM recruitment or audit response preparation has not been disrupted by the national emergency, employers should make all reasonable efforts to proceed with these filings under the original timeframes.