As additional countries — including the U.S. — close their borders to limit the spread of COVID-19 across country lines, employers in the U.S. and abroad are quickly needing to shift gears as complications arise from limitations on business travel, work visas and other immigration issues. Below we have outlined critical immigration issues employers and their foreign national employees are grappling with in light of the spread of COVID-19, known as the coronavirus, in the U.S. and around the world, including the announcement from President Trump implementing a travel ban for foreign travelers from Europe that will take effect on Friday, March 13, 2020, at 11:59 p.m. ET. For specific guidance on employment issues related to the coronavirus, view our Employer’s Action Guide.
COVID-19: Impact on U.S. Immigration
Travel Ban for Certain Foreign Nationals Traveling From Europe Effective March 13, 2020, at 11:59 p.m. ET
On March 11, 2020, President Trump issued a travel ban effective March 13, 2020 at 11:59 p.m. ET that will suspend and limit entry into the U.S., as immigrants or nonimmigrants (with some exceptions), of individuals who were physically present in the Schengen area during the 14-day period preceding their entry or attempted entry into the U.S. After this announcement, the Department of Homeland Security Acting Secretary Chad Wolf issued a separate announcement stating that additional information would be coming in the next 48 hours, including a supplemental Notice of Arrivals Restriction requiring U.S. passengers (and others exempt from the travel ban) that have been in the Schengen Area to travel through select airports that will have enhanced screening procedures. Although there was some initial confusion after President Trump’s televised address on March 11, this travel ban does NOT apply to U.S. citizens and does not apply to cargo. Additionally, the Presidential Proclamation specifically states that this travel ban will remain effective until terminated by the President. However, the initial plan is only for a 30-day time period, and flights that are headed into the U.S. at the time the restriction becomes effective will be allowed to land.
• Countries affected: 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
• Countries NOT affected: Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Ireland, Kosovo, Montenegro, North Macedonia, Romania, Serbia and United Kingdom
• Foreign nationals affected: Nonimmigrant and immigrants who are not included in the exemptions listed below
• Certain foreign nationals NOT affected:
º Any lawful permanent resident of the United States.
º Any alien who is the spouse of a U.S. citizen or lawful permanent resident.
º Any alien who is the parent or legal guardian of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21.
º Any alien who is the sibling of a U.S. citizen or lawful permanent resident, provided that both are unmarried and under the age of 21.
º Any alien who is the child, foster child or ward of a U.S. citizen or lawful permanent resident, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications.
º Any alien traveling at the invitation of the United States government for a purpose related to containment or mitigation of the virus.
º Any alien traveling as a nonimmigrant pursuant to a C-1, D, or C-1/D nonimmigrant visa as a crewmember or any alien otherwise traveling to the United States as air or sea crew.
º Any alien seeking entry into or transiting the United States pursuant to one of the following visas: A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), E-1 (as an employee of TECRO or TECO or the employee’s immediate family members), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 (or seeking to enter as a nonimmigrant in one of those NATO categories); or whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement.
º Any alien whose entry would not pose a significant risk of introducing, transmitting or spreading the virus, as determined by the Secretary of Health and Human Services, through the CDC director or his designee.
º Any alien whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security or their respective designees, based on a recommendation of the Attorney General or his designee.
º Any alien whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security or their designees.
º Members of the U.S. Armed Forces and spouses and children of members of the U.S. Armed Forces.
Although not yet confirmed of the issuance of this update, it is likely that DHS and the Transportation Security Administration (TSA) will require U.S. citizens and others exempt from the travel ban to be screened at the following airports, as these have been the airports that have been used with the recent travel bans for China and Iran:
• John F. Kennedy International Airport (JFK), New York
• Chicago O’Hare International Airport (ORD), Illinois
• San Francisco International Airport (SFO), California
• Seattle-Tacoma International Airport (SEA), Washington
• Daniel K. Inouye International Airport (HNL), Hawaii
• Los Angeles International Airport, (LAX), California
• Hartsfield-Jackson Atlanta International Airport (ATL), Georgia
• Washington-Dulles International Airport (IAD), Virginia
• Newark Liberty International Airport (EWR), New Jersey
• Dallas/Fort Worth International Airport (DFW), Texas
• Detroit Metropolitan Airport (DTW), Michigan
Additional information about the European travel ban:
• Presidential Proclamation – Suspension of Entry as Immigrant and Nonimmigrants Who Pose a Risk of Transmitting 2019 Novel Coronavirus
• White House fact sheet on the travel ban
• Statement by Homeland Security Acting Secretary
Additional country restrictions for admission into the U.S. — China and Iran
Prior to the March 11, 2020 announcement, President Trump issued other Presidential Proclamations for the suspension of entry as immigrants and nonimmigrants who pose a risk of transmitting COVID-19. These travel bans include China and Iran and remain in place. Read the February 29 and January 31 proclamations.
U.S. embassies and consulates closed in Italy and China
The U.S. embassies and consulates in China have been closed since early February. Emergency American citizen services have been available. On February 8, 2020, the U.S. Embassy in Beijing announced that regular visa services would be suspended as of February 10, 2020. This includes the U.S. Embassy in Beijing and the U.S. consulates in Chengdu, Guangzhou, Shanghai and Shenyang. On March 5, 2020, the State Department confirmed that the February 8 announcement remained in effect.
The U.S. Embassy in Rome also issued a health alert on March 10, 2020, announcing that only emergency American Citizen Services and emergency visa services are available at the U.S. Embassy in Rome and Consulates General Milan, Naples and Florence.
With the potential spread of COVID-19 in Europe, we may see additional closures of U.S. embassies and consulates and a further suspension of nonimmigrant and immigrant visa services.
Form I-9: Potential issues with COVID-19
Many employers are allowing or requiring remote work and telework from their employees with the COVID-19 situation. One question that has come up is the requirement that an employee’s I-9 documents must be reviewed in person. As of the date of this update, this and all other Form I-9 requirements remain in effect. Under long-established Form I-9 requirements, in order to complete Section 2 of Form I-9 — the employer or the employer’s authorized representative must physically examine either one List A document or one List B document and one List C document in order to comply with the government requirements. The obligation to review the actual originals was hard-wired into the I-9 law and regulations with the passage of the Immigration Reform and Control Act of 1986 (IRCA), and with the development of the many new techniques to create fake documents, it’s certain that the law on this point will not change — even if the government would possibly temporarily lift it because of the extraordinary work from home circumstances employers are facing with COVID-19. The plain language of Form I-9 requires the employer or the authorized employer’s representative to conduct a physical examination of the original document(s) in order to determine if it reasonably appears to be genuine and relates to the person and then to sign Form I-9 under penalty of perjury. These are very strict requirements and can lead to severe penalties and fines if not followed.
Therefore, even if using an employer’s authorized representative, this must still be “in person” and cannot be completed by fax, scan/email, FaceTime, Skype, Webcam, etc. However, with the current and possible expanded work from home requirements in the U.S., employers may see some relaxation of this requirement. As with other immigration rules (F-1 online study — see below) being relaxed, the government may possibly relax these or other “in-person” requirements. However, nothing has changed to date and the long-standing in-person I-9 verification rules remain in effect.
USCIS expands telework requirements for USCIS employees — impact on services?
On March 9, 2020 (and updated on March 12, 2020), USCIS announced that it will implement a nationwide “remote work program” although not specifically referencing that it is due to COVID-19. USCIS already had a telework program which required employees to report to their regular work sites at least two days per pay period. With remote work arrangements, USCIS employees would work all or most of the time from a geographic location other than a specific USCIS brick and mortar facility and would not have to report to such a facility at least two days per pay period. Although not yet entirely finalized, this will likely soon be effective. It is hard to know what impact this will have on USCIS services since USCIS already had a telework program in place. One fall-out could be even more extended processing times. It is unclear if these additional telework or remote work for USCIS employees (whether due to COVID-19 or not) will have any impact on the H-1B cap electronic registration period which is currently open but scheduled to close by noon ET on March 20, 2020. In addition to the new electronic registration system, USCIS has also announced that the H-1B cap lottery will be conducted after the registration period closes and before March 31, 2020, when it will provide notification through the myUSCIS account system of the H-1B cap cases selected and can be filed. Those cap cases selected in this year’s lottery process will have a 90-day time period for filing.
F-1 and J-1 students: Procedural changes authorized due to COVID-19
On March 9, 2020, the Student and Exchange Visitor Program (SEVP) issued a broadcast message that SEVP-certified schools — those authorized to enroll F-1 and J-1 students — will allow/expand online courses and study for F-1 and J-1 students with this extraordinary pandemic situation. Under the F-1 and J-1 regulations, F-1 and J-1 students have specific limitations for online coursework that is allowed in order to properly maintain F-1 and J-1 immigration status. SEVP emphasized that they are not requiring schools to make such notifications in advance. However, such procedural adaptations must be submitted to SEVP within 10 business days of the change. SEVP was specific to note that the guidance is intended to apply only to students currently enrolled in a program of study and not for new or initial students who are outside of the U.S. In this same broadcast message, SEVP also indicated that workplace requirements might also be impacted for those students engaged in F-1 optional practical training or F-1 curricular practical training and that the students should work with their employer on ways to maintain employment, including telework or other similar arrangements.
In addition to J-1 students, J-1 sponsors are also reaching out to confirm remote working arrangements for J-1 trainees/interns so that these exchange visitors are also in compliance with their status and government rules.
Temporary pause of certain international exchange programs due to COVID-19
On March 12, 2020, the State Department announced that the Bureau of Educational and Cultural Affairs (ECA) will temporarily suspend all ECA-funded programs that involve travel to and from countries with certain CDC alerts: Alert Level 2, Warning Level 3 or heightened State Department COVID-19 related Travel Advisory Levels 3 (reconsider travel) or 4 (do not travel). ECA has already evacuated or offered voluntary departure for U.S. citizen participants from regions or countries where there are elevated warnings (Azerbaijan, China, Italy, Mongolia, Republic of Korea).
COVID-19: Impact on the U.K., India and Other Countries Around the World
Coronavirus and U.K. inbound travelers
U.K. government guidance for travelers returning from certain parts of the world is currently as follows:
The government advises that travelers should stay indoors and avoid contact with other people immediately if they have traveled to the U.K. from:
• Hubei province in China in the last 14 days, even if the individual does not have symptoms.
• Iran, lockdown areas in northern Italy, or special care zones in South Korea since February 19, even if the individual does not have symptoms.
• Other parts of mainland China or South Korea, Hong Kong, Japan, Macau, Malaysia, Singapore, Taiwan or Thailand in the last 14 days and have a cough, high temperature or shortness of breath (even if the individual’s symptoms are mild).
• Other parts of northern Italy (anywhere north of Pisa, Florence and Rimini), Cambodia, Laos, Myanmar or Vietnam since February 19nand have a cough, high temperature or shortness of breath (even if the individual’s symptoms are mild).
This list is being kept under review depending on the spread of the virus. All travelers are being advised to monitor their health after traveling and to self-isolate if they develop symptoms of COVID-19.
There are various provisions put into place by the U.K. government for Chinese nationals who hold a U.K. visa that needs to be renewed as well as Chinese nationals who need to switch their Tier 2 categories. Please see the government guidance for up-to-date information if any of these situations apply to you.
U.K. employers who are visa sponsors
One of the requirements of holding a U.K. visa sponsor licence is that if the sponsored person is not complying with the terms of their visa, sponsorship must be withdrawn. Under current guidance, sponsors do not have to do so if the reason for non-compliance is coronavirus related. More information can be found on the U.K. government website.
COVID-19 and travel to India
Similar to the new travel restrictions imposed by the U.S. government, travel and visa-related restrictions have also now been imposed by the government of India. All Indian visa services have been suspended until April 15, 2020. If there are urgent or compelling reasons to visit India, those foreign nationals are required to contact the nearest Indian Embassy/Consulate.
The Indian government has issued a travel advisory providing the following information:
• All existing visas other than diplomatic, official, UN/international organizations, employment (and project) visas stand suspended until April 15, 2020. This will come into effect from March 13, 2020, at 12:00 GMT from the port of departure.
• Visas of all foreign nationals who are already in India remain valid.
• All employment visa holders and their dependents who are currently in India on their employment and dependent visas respectively are also in valid status. However, if a dependent of an employment visa holder is not presently in India, their visa in this instance will stand suspended until April 15, 2020.
Visa free travel facility which is granted to Overseas Citizens of India (OCI) will be suspended until April 15, 2020. This will come into effect from March 13, 2020 at 12:00 GMT from the port of departure.
• All foreign nationals who travel to India may be quarantined for a minimum period of 14 days upon their arrival to India.
• All incoming travelers including Indian nationals who are arriving from or who have visited the following countries after February 15, 2020, will be quarantined for a minimum period of 14 days upon their arrival to India: China, Italy, Iran, Republic of Korea, France, Spain and Germany.
• All incoming travelers must avoid all non-essential travel to India.
Entry requirements for other countries
This table provides recent revised entry requirements for other countries around the world. Keep in mind that this information is fluid and is constantly being updated so it is best to check country-specific requirements before traveling.
It is also imperative on those traveling to check any and all government information before such travel to find out the latest information. For the most current information about COVID-19, see the following resources:
As outlined above, the travel ban and other employment-related international travel issues are impacting companies and foreign national employees. Some employees are stuck overseas and cannot get back to their positions in the U.S. These have included Chinese employees who may have traveled back to China in December or January for personal or business travel and whose cases were suspended at the consulate because of the closures. Now with the new ban on Schengen countries, nonimmigrant workers who may have been planning to come to the U.S. on an L-1 visa or other type of work visa may need to push back their position and relocation to the U.S. until a future start date. Other contingency planning with these travel issues could include filing of more individual petitions in the U.S. Many L-1 blanket petition holders will travel back to their home countries to obtain extensions of L-1 blanket visas instead of applying through L-1 petitions at one of the USCIS Service Centers in the U.S. Some of this may be due to ease of travel back to the home country (before company and other travel restrictions). Other reasons for L-1 blanket petitions extensions at overseas consulates might be the different level of scrutiny that is given by the consulate versus USCIS and the expectation that an onerous Request for Evidence (RFE) might be issued on a standard L-1B or L-1A petition. With such restrictions on travel and now the further limitations to get back into the U.S., many more individual petitions may need to be filed which could lead to more RFEs and possibly denials under President Trump’s Buy American Hire American executive order. There is certainly more to come on these and related immigration and travel-related issues over the course of the next several weeks and months. Employers and their foreign national employees need to be prepared to be landlocked either in the U.S. or outside of the U.S. and re-evaluate how to file certain immigration petitions and paperwork along with pushing back start dates for those foreign workers with new roles in the U.S.
As the number of cases around the world grows, Faegre Drinker’s Coronavirus Resource Center provides information to help you understand and assess the legal, regulatory and commercial implications of COVID-19.
Compliments of Faegre Drinker Biddle & Reath LLP – a member of the EACCNY
• Beth E. Carlson, Counsel, Minneapolis | beth.carlson[at]faegredrinker.com | +1 612 766 7652
• Elaine M. Kumpula, Partner, Minneapolis | elaine.kumpula[at]faegredrinker.com | +1 612 766 8967
• Claire D. Nilson, Counsel, London | • Scott W. Wright, Partner, Minneapolis | scott.wright[at]faegredrinker.com | +1 612 766 7772