Fact vs. Fiction – COVID 19 And Changes To U.S. Immigration Case Processing

Even though President Trump has issued multiple executive orders and proclamations banning or restricting travel to the U.S. for certain foreign nationals, many individuals from other countries continue to work in and travel lawfully to the United States for employment.  The Trump administration’s public statements regarding measures that his administration will take against foreign nationals and their ability to work in this country often portend to extreme actions, while the actual presidential orders are less severe.  This tendency, in public pronouncements, to exaggerate the impact of presidential actions motivates the President’s political base, while leaving companies room to maneuver and to hire the most qualified workers for hard-to-fill positions, including with foreign national workers.

It is critical for employers and their foreign national workforce to have a clear understanding of current U.S. immigration case processing and procedures.  This update intends to separate fact from fiction with regard to the current state of U.S. immigration procedures and U.S. companies’ ability to hire and retain foreign talent.

At this time, five key considerations come into play which are impacting U.S. employers and their foreign national workers:

1. U.S. consulates around the world remain closed for visa appointments due to COVID-19 with only very rare exceptions for urgent situations. It is possible to schedule a visa appointment for a future date at some consular posts and we are hearing of appointment dates being set for July or August. Not all consulates are yet allowing individuals to schedule appointments.Best Practice: If your company needs to transfer foreign nationals to the United States in the near future, you should start the visa application process well advance of the scheduled assignment.  By starting the process early, your employees will be in the best position to secure a visa interview once the consulates reopen.
2. There remains a ban on admission to the U.S. for those who have been in the European Union, the United Kingdom, Ireland, the People’s Republic of China, Iran, or Brazil for the 14 days prior to travel. This ban does not apply to U.S. citizens or permanent residents, or their immediate family members (spouses/minor children).  On a related note, many other countries have similar restrictions or require that individuals arriving ‘in country’ remain in quarantine for a period of time after arrival.Best Practice:  If your company needs to transfer employees who are subject to these travel bans, determine whether they qualify for an exception to the travel ban.  If they do not have close U.S. citizen or lawful permanent resident family members, they could still qualify for an exception of their work involves COVID-related research or patient care, or their work is in the national interest of the United States.  If no exceptions apply, you may wish to consider having them spend at least 14 days in a country that is not currently subject to the travel ban, and then have them apply for admission to the U.S.  In this situation, they must not travel to the United States through the Schengen area, the UK, Ireland, China, Iran or Brazil.
3. Travel restrictions from the Schengen region, the UK, Ireland, China, Iran and Brazil do not impact citizens of these countries if they are in the U.S. and need to extend their nonimmigrant status. These first two points mean that some foreign national employees in the U.S. whose nonimmigrant status will soon expire may need their employers to file petitions to extend nonimmigrant status for them through the United States Citizenship & Immigration Services (USCIS), rather than attempting to travel to present a nonimmigrant visa application to a U.S. consulate abroad.  Many nonimmigrants with pending extensions at USCIS are eligible to receive an automatic 240 day extension of work authorization (to cover the adjudication period). The automatic extension of work permission does not apply to derivative spouses with an EAD/work permit.  However, the entire family is eligible to remain lawfully in the United States while the timely filed extension requests are pending.
4. The State Department announced a new “standard” of review for L visa applications. Under this new standard, consular officers have been instructed to approve L-1 visa applications filed under a company’s valid Blanket L petition only if there is “no doubt” that the applicant qualifies for the visa. We have not yet seen the results of this new standard as consulates are closed due to COVID-19, however, we are now preparing additional evidence to support future blanket L applications in anticipation of increased scrutiny at the consulates.Best Practice: Once the consulates reopen for normal visa services, provide thorough documentation to establish that intra-company transferees are eligible for L-1 visa classification, when applying under a company’s approved blanket L petition.
5. The Executive Order (EO) of April 22, 2020 placed a halt on the issuance of “immigrant” visas by U.S. consulates abroad (for those seeking permanent resident/green card status). This EO does not apply to nonimmigrants or temporary workers like L-1 or H-1B visa holders. The EO did note, however, that concerned U.S. federal agencies (Labor, Department of Homeland Security, and the State Department) must review “nonimmigrant programs” and recommend to the president within 30 days “other measures appropriate to stimulate the U.S. economy and ensure the prioritization, hiring, and employment of U.S. workers.” While some changes to nonimmigrant visa categories may require regulatory action (which would take time), it is possible that the administration may recommend and implement other restrictions that do not, such as the increased scrutiny on L petitions noted above or even a ban on entry of certain nonimmigrant visa categories. In preparing new visa applications, it will be helpful to include any information about the positive impact of an individual’s admission on the U.S. economy and/or employment of U.S. workers.

With regard to timing:

• USCIS is currently taking from 2-4 months to adjudicate an L-1 petition and similar times frames on H-1Bs, and these processing times may grow longer. USCIS temporarily suspended its Premium Processing program due to COVID-19, but recently announced the resumption of this expedited review. As of June 8, 2020, Premium Processing service will resume for certain types of nonimmigrant petitions and the agency plans to gradually reintroduce expedited service for other case types later in the month. For more details regarding the return of Premium Processing service, please click here.
• If USCIS issues an RFE, this can add another 3 months or more to the adjudication time.
  • As noted above, USCIS grants an automatic 240 day extension to an individual with a pending request to extend nonimmigrant status, allowing the employee to continue working even after the initial nonimmigrant status expiration date.
• Timing at U.S. consulates is uncertain. Once an individual secures a consular appointment, it usually takes about five to ten business days for the return of the passport and new visa foil. What is unknown is whether and when the individual may return to the U.S., if there continue to be restrictions on travelers from certain countries (e.g., EU, UK, Ireland, China, Iran and Brazil) due to COVID-19. Moreover, there have been instances of consulates cancelling visa appointments, requiring individuals to reschedule for a later date. As consulates begin resuming operations, the timing of this will vary form post to post. Thus, even securing a consular appointment is not a guarantee that the consulate will not later postpone it.

Of course, this is what is known to us as of today[1]. We do anticipate other changes – either due to COVID-19 directly, or to the administration’s concerns over rising U.S. unemployment. We will keep you updated on any new developments and will continue to coordinate closely with employers on devising the best possible court of action for each individual employee.

[1] Last updated June 9, 2020.