COVID-19 and Immigration Considerations for U.S. Employers
Last updated March 16, 2020
On March 11, 2020, the World Health Organization (WHO) declared the COVID-19 (“coronavirus”) outbreak a “pandemic”. While government responses are still in a state of flux, employers should expect significant upheaval in the global mobility of their workforce. In the United States, restrictions have already been put in place to limit the entry and movement of individuals, depending on countries they have traveled to and their immigration status in the U.S.
As of March 16, 2020, President Trump has issued four proclamations suspending the entry into the United States of individuals who were physically present within the United Kingdom or Ireland, the Schengen Area, the Islamic Republic of Iran or the Peoples’ Republic of China during the 14-day period preceding their entry or attempted entry in the United States, subject to certain exceptions. Individual states and cities have also issued sweeping shutdowns and social isolation plans which have led to many employers allowing or requiring their workforce to work remotely. Employers should be aware of the impact these drastic measures will have on their workforce.
Who do these travel bans apply to?
Currently, any alien who has been present in the United Kingdom, Ireland, the Schengen Area (comprising 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), Iran or China, within the preceding 14 day period, will not be permitted entry to the U.S. This is subject to several exceptions. Individuals that the travel ban does not apply to include:
- U.S. Citizens and Lawful Permanent Residents (Green Card Holders);
- Members of the U.S. Armed Forces, their spouses and children;
- Foreign spouses and children of citizens and lawful permanent residents;
- Foreign parents and legal guardians of a U.S. citizen or lawful permanent resident who is unmarried and under the age of 21.
In addition, the Centers for Disease Control and Prevention (CDC) has stated that U.S. Citizens and Legal Permanent Residents returning from these countries will be asked to stay home for 14 days from the time they left these countries and practice social distancing. According to a Notice of Arrival Restrictions issued by the Department of Homeland Security, those U.S. Citizens or Lawful Permanent Residents returning to the U.S. from the stated countries are required to fly to one of the following 13 airports to undergo basic medical exams and answer questions about medical history, symptoms and travel history:
- Boston-Logan International Airport (BOS), Massachusetts
- Chicago O’Hare International Airport (ORD), Illinois
- Dallas/Fort Worth International Airport (DFW), Texas
- Detroit Metropolitan Airport (DTW), Michigan
- Daniel K. Inouye International Airport (HNL), Hawaii
- Hartsfield-Jackson Atlanta International Airport (ATL), Georgia
- John F. Kennedy International Airport (JFK), New York
- Los Angeles International Airport, (LAX), California
- Miami International Airport (MIA), Florida
- Newark Liberty International Airport (EWR), New Jersey
- San Francisco International Airport (SFO), California
- Seattle-Tacoma International Airport (SEA), Washington
- Washington-Dulles International Airport (IAD), Virginia
What Employers Should Do Now
In light of these travel restrictions, employers should move quickly to identify employees who may be affected by the ban. It may be prudent for employers to ensure that employees who are placed abroad return to the United States to avoid any ongoing restrictions that are being placed on their movement by foreign governments in light of the global pandemic. It is also advisable that employers suspend any non-essential international travel for employees in the coming weeks. The following are some issues that employers should be aware of:
1. Status Issues for Employees In The U.S.: Of particular concern to employers should be those employees whose status will be coming to an end in the coming weeks and months. Employees should be made aware of the difficulties of foreign travel, and extensions should be processed within the United States, through United States Citizenship and Immigration Services (USCIS) as much as possible. For example, while it is normally preferable to process E-3 extensions through a consulate outside the United States, it may be unavoidable under current conditions to process within the United States.
Employers should also check in with those employees who are currently on Optional Practical Training (OPT) or Curricular Practical Training (CPT) in F-1 status. The Student and Exchange Visitor Program (SEVP) provided guidance that SEVP-certified schools may need to adapt their procedures and policies to address public health concerns, and indicated flexibility in relation to remote workplace requirements. Employers should instruct employees in F-1 status to check in with their Designated School Official (DSO) to ensure that any remote working arrangement is compliant with their OPT requirements.
Also, Employers should be cognizant of H-1B petitions being tied to those Metropolitan Statistical Areas (MSA) that were listed on the initial filing. Under certain circumstances, H-1B employees may be placed at a new job location for up to 30 days without obtaining a new Labor Condition Application (LCA). Should an H-1B Employee be required to work from home for more than 30 days at a location outside the listed MSA, it may be necessary to file an H-1B Amendment. Employers should consult with counsel about their H-1B workforce should offices remain shut down over a prolonged period.
2. Status Issues for Employees Who Cannot Enter the U.S.: In most cases, alien employees stuck outside the U.S. due to the travel restrictions imposed will not have their status affected. However, F-1 or J-1 employees, for example, may have their status impacted by a prolonged period outside the U.S. Employers should consult with counsel at their earliest convenience to plan for such situations. It may be the case that an individual can travel to a third country for a 14-day period, prior to entering the U.S.
3. Impact of Consulates Closures on Foreign National Employees: A number of U.S. consulates globally are cancelling visa appointments. Employees should check particular consulate websites for closures or other changes prior to attending a scheduled appointment. It is our expectation that visa wait times will be impacted once consulates reopen, and will result in delays in returning a workforce to the U.S. should they need a visa. Again, at this time it may be preferable for employees to process within the U.S. through USCIS.
4. U.S. Citizen Employees Travelling Abroad: Any U.S. Citizen employee that has unavoidable travel outside the U.S. over the next several weeks should enroll in the State Department’s Smart Traveler Enrollment Program (STEP). This service allows U.S. Citizens and Nationals travelling and living abroad to enroll their trip with the nearest U.S. Embassy or Consulate and receive important information from the Embassy about safety conditions in the destination country, as well as allowing the U.S. Embassy or Consulate to contact the U.S. Citizen in an emergency. Please see the State Department website for further information: https://step.state.gov/
5. I-9 compliance: Employers must continue to inspect the original documents of a new hire to satisfy I-9 requirements. This must take place in person to ensure that the documents relate to the individual seeking employment and that they are genuine. Form I-9 can be completed remotely by designating an authorized representative to fill out Form I-9 on the Company’s behalf, e.g. a notary public local to the new hire. There need not be any formal agreement between the Employer and the authorized representative.
6. Layoffs, Leave, Reduction in Salary and other changes in employment: This pandemic is providing Employers with an unprecedented sudden change in workflow and need for a workforce. Employers should consult counsel prior to making any changes or termination to the employment of Foreign Nationals, to ensure that they are complying with all Department of Labor and USCIS requirements, and aware of the impact to the Foreign National and their status that any changes may have.
The impacts of COVID-19 on a global workforce are changing by the hour and presenting significant challenges to U.S. Employers. In light of the ongoing developments, we encourage Employers to contact CSG immigration counsel to discuss available options and best practices during this time.
For additional information pertaining to the coronavirus outbreak, please visit CSG's COVID-19 Resource Center.
This publication contains general information on recent legal developments and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Attorney Advertising. Prior results do not guarantee a similar outcome.