Coronavirus & Immigration Update – March 23, 2020

The coronavirus pandemic continues to impact U.S. immigration. Border closures, consulate closures, USCIS office closures – the events of the past few weeks are unprecedented in immigration law. We sincerely wish all the best in this very difficult time, and stand ready to answer questions about how these changes impact specific situations. We continue to follow things closely, as they pertain to immigration and border matters. As a general rule, everything is going to take longer right now, and planning ahead is more important than ever before.

Here is a summary of the latest in immigration news:

  • By mutual consent, the U.S. Government announced border “closures” with Canada and Mexico. The measures are largely focused on halting tourism and shopping.  Travel through land and ferry ports of entry is limited to “essential travel”.  The agreements have exceptions for returning travelers, health care workers, agriculture commuters, trucks, and armed forces. We’ll have to see how broadly these are applied. Certain ports of entry say they are not adjudicating TNs and Ls; others are.  U.S. Customs and Border Protection (CBP) reserves discretion in determining the definition of essential travel, as well as examining individuals for admissibility.  The current situation is unprecedented, and so we expect guidance to be continuing. We are able to reach out on occasion to discuss matters with CBP in advance, as fitting.
  • People who enter the United States on the Visa Waiver Program (ESTA) are usually required to depart the United States within 90 days of entry.  However, persons with symptoms of coronavirus or for other reasons related to the coronavirus may not be safe to travel.  Different airports and Deferred Inspections Offices are developing procedures for getting an extension, that will amount to a “Satisfactory Departure” and non-violation of the program. CBP is saying such extensions are not automatic and will be reviewed case by case. While a national procedure may be in the works, for now it is incumbent upon ESTA holders to determine the local process, which we can attempt to assist with.
  • As of March 18th, Department of State embassies and consulates around the world have taken the unprecedented move of suspending all routine immigrant and nonimmigrant visa services. There may be certain cases which are non-routine, which can be addressed through communications with consulates. Most likely, this would be cases involving health care workers and other essential persons. CBP also has the authority to parole persons into the United States for humanitarian reasons.  I expect anyone seeking entry on such basis would have to satisfy the government as to their personal health, as well as to their essential need. It is important for businesses that have personnel that they’d like to see in the United States get their applications squared away, so that when appointments open up, they are near the front of what may be a long line.
  • The Department of State has issued a Global Level 4 Health Advisory, advising all U.S. citizens against international travel and to return home. 
  • U.S. Citizenship and Immigration Services (USCIS) has temporarily closed its field offices to the public. This means naturalizations, adjustment of status interviews, biometrics for employment authorization and travel documents, and asylum interviews are all on hold. The suspension is until at least April 1st
  • USCIS also suspended Premium Processing for all cases.  On the one hand, this is very bad. On the other hand, the agency is still accepting applications. Premium Processing allows for 15-day initial adjudication of most nonimmigrant and immigrant petitions, for the fee of $1440.  Regular adjudication timelines can be anywhere from a couple months to over a year. Businesses really rely on paying this extra fee, because otherwise timelines for essential workers become untenable.  The agency, which is self-funded, also relies on this revenue, though not without some controversy. This limitation threatens predictability for businesses and non-citizens alike, in a very big way. For us, often times we’re submitting these petitions on behalf of owners of the business, who may live in Canada but who need to visit their businesses in the United States. We also use this process for foreign physicians, who have timelines which require quicker adjudication.  We’ve seen suspensions like this before, and they can be very disruptive. USCIS maintains a process for requesting expedited adjudication, which is based on several criteria, including humanitarian and economic need.  The process is cumbersome but has been successful sometimes in the past. Of course, this time, we can expect many, many applicants to be making similar requests.
  • Immigration and Customs Enforcement (ICE) says that it will temporarily halt most immigration enforcement during the epidemic.  We shall see, although it seems unlikely that they’ll be visiting hospitals.  There continue to be concerns about noncitizens in detention. The American Civil Liberties Union and Northwest Immigrant Rights Project sued ICE and GEO, the contractor that runs the facilities, to seek release of vulnerable persons, but relief was not granted, largely because so far there hadn’t been a reported case, though some in detention seemed to be showing symptoms.
  • USCIS has published guidance allowing accommodations for remote signing of documents during the pandemic response. Standard guidelines require “wet signatures” on most documents, which in the current circumstance’s conflicts with social distancing guidance.
  • DHS will exercise discretion to defer the physical presence verification requirements for completing Section 2 of the I-9 forms. Employers can inspect documents remotely, retain copies, and mark COVID-19 on the I-9 form. Then, once business resumes, the I-9 will need to be amended, after in-person review of documents. This exception to the rule will last for 60 days from publication of the notice, or three days after the National Emergency is ended, whichever comes first.  Employers should visit I-9 Central for more information and updates.
  • The Government is also giving an automatic 60-day extension to any employer who was served with a Notice of Inspection of I-9 documents in March. We observed a surge in the issuance of these inspection notices locally in early March.  Now is the time to get the I-9 program in order, as inspections are up over 400%, year over year.
  • The Executive Office of Immigration Review (Immigration Court) suspended all adjudication of non-detained cases until at least April 10, 2020.
  • Trusted Traveler Enrollment Centers have suspended operations until at least May 1st, 2020. This means appointments with officers are not available during this time. The DHS website for the programs, which includes Global Entry, NEXUS, SENTRI, FAST, and TSA Precheck, is still accessible.
  • The Department of Labor issued an FAQ, providing certain extensions of time for recruitment periods related to PERM labor certifications, during the crisis. The FAQ also addressed certain physical posting requirements, providing some accommodations to the regulations.

Every day brings something new.  The announcements and closures of the past week are unprecedented, but surely exceptions will be necessary in the time ahead, and we may also see Congressional action specific to some aspects of immigration.  We will stay on top of it and are available to discuss.

All our best to you, in health, business, and life.