The COVID-19 pandemic has affected nearly every aspect of employment, including nonimmigrant workers seeking to enter the U.S. temporarily to work. Since April, there have been several presidential proclamations with changes to U.S. policy on nonimmigrant workers with the intent to protect U.S. workers from further job loss due to the COVID-19 pandemic. By way of background, here is a brief timeline and summary of the proclamations to date.
April 22 Presidential Proclamation 10014
The proclamation temporarily suspended the entry of a limited group of prospective immigrants into the U.S. for 60 days due to the COVID-19 pandemic. The proclamation applied to those who were outside the U.S. on the effective date of the proclamation and had not been issued an immigrant visa or similar U.S. travel document by a U.S. consulate. It did not affect those already holding a valid immigrant visa or similar travel document, or applicants for adjustment of status to permanent residence, among other exceptions that can be found in the proclamation. Here is a link to the U.S. Department of State’s Directory of visa categories.
June 22 Presidential Proclamation 10052
The proclamation extended the restrictions imposed by Proclamation 10014 until December 31, 2020, and suspended entry of nonimmigrants in the following categories: H-1B, H-2B, J (for aliens participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program) and L, along with their spouses and children. Exceptions to entry restrictions can be found in the proclamation.
June 29 Proclamation on Amendment to Proclamation 10052
The amendment clarified that only individuals with H-1B, H-2B, L-1, or J-1 visas valid on June 24, 2020, are exempt from the travel ban.
Takeaway for Employers
Impact to Current Visa Holders
Perhaps most importantly, the proclamations affect nonimmigrant workers entering the U.S. and not those already here. The proclamations have no immediate impact on your current H-1B and L-1 workers. However, international hiring plans will definitely be impacted through the end of the year with the unavailability of common U.S. visas. Immigration counsel may be able to assist in determining if your recruitment needs could be fulfilled by using a visa category not impacted by the proclamations.
Employers may most heavily feel the impact of the ban on those entering with an H1-B visa. An H1-B visa is a nonimmigrant visa allowing U.S. companies to employ graduate-level workers in specialty occupations requiring theoretical or technical expertise in specialized fields such as in IT, finance, accounting, architecture, engineering, mathematics, science, medicine, etc. The intent of the H-1B program is to help employers unable to otherwise obtain required business skills and abilities from the U.S. workforce by authorizing the temporary employment of qualified individuals who are not otherwise authorized to work in the U.S. Employers must sponsor H1-B visa holders, and the visa is valid for three years with one possible additional three-year extension.
The impact of the proclamations to pending H-1B CAP petitions likely depends on whether the worker was in the U.S. prior to June 24. Foreign nationals already in the U.S. working or studying with another type of visa who requested the H-1B petition be adjudicated as a change of status, shouldn’t be impacted. If, however, an individual currently outside the U.S. is approved for an H-1B visa through a consulate abroad, he/she likely will not be able to enter the U.S. until after December 31, 2020.
Employers should be ready for further changes and limitations to the H-1B program. The proclamations call upon the Secretary of Homeland Security to consider issuing regulations or other actions concerning the allocation of visas and ensuring the presence of H-1B workers in the U.S. “does not disadvantage United States workers.”
Form I-9 Compliance
Some Form I-9 regulations have been relaxed due to the pandemic, and most are still in effect. In recognition that most employees were working remotely, on March 20, 2020, the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced the following changes to Form I-9 procedures:
- Employers may inspect Form I-9, Section 2 documents remotely and may inspect and retain copies, not originals, of those documents until normal business operations resume.
- Employers should enter “COVID-19” as the reason for the physical inspection delay in Section 2.
- Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to Section 2 additional information field on the Form I-9, or to Section 3 as appropriate.
- These provisions may be implemented for a period of 60 days from the date of the notice (March 20, 2020) or within three business days after the termination of the national emergency, whichever comes first.
On May 1, 2020, the following was announced:
- Identity documents found in List B set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes
- The expired List B document can be valid for more than 90 days.
- Within 90 days after DHS’s termination of this temporary policy, the employee must present a valid unexpired document to replace the expired document presented when initially hired.
There were several 30-day extensions to the I-9 flexibility provisions announced in May and June with the latest expiring on July 19, 2020. The most recent guidance issued by ICE and DHS concerning Forms I-9 can be found here.
Takeaway for Employers
Normal business operations will resume at some point, and HR must be prepared to properly verify documents accepted under COVID-19 flexibility policies within the required timeframes. I-9 compliance should be a high priority item addressed as soon as businesses reopen to avoid costly penalties for failure to comply.
Smart HR Has You Covered
Compliance with U.S. immigration law and Form I-9 requirements has always been challenging, and COVID-19 and the resulting policy changes have made it more so. Smart HR has the resources to help you understand and comply with the most recent regulation changes and those on the horizon. Call us today.
This blog is intended for informational purposes only and should not be regarded as legal advice.