Employment Immigration: Continued Changes From USCIS and the State Department With COVID-19, Travel Bans and Processing

Business immigration in the United States continues the roller coaster ride of the last six months. With the COVID-19 pandemic, U.S. immigration has been subjected to U.S. Citizenship and Immigration Services (USCIS) office and consulate closures, travel bans, a three-month suspension of premium processing, and rumors of USCIS furloughs. This short article will address some of the most recent updates.

Potential USCIS Furloughs Canceled in Recent Announcement

On August 25, 2020, USCIS announced that it will cancel the possible furloughs that were scheduled to occur on August 30, 2020. Such furloughs would have impacted over 13,000 USCIS employees, which in turn would have severely impacted USCIS services. USCIS backlogs have only grown in recent months due to COVID-19 and other government processing issues. With so many changes to immigration filings in and outside of the U.S., this is one less worry for foreign workers and their employers. For more information, please see the USCIS announcement.

With EAD Production Delays, USCIS Allows I-797 Approval Notices for Form I-9 Verification

USCIS confirmed that the production of employment authorization document (EAD) cards has been delayed because of the COVID-19 pandemic. With such a delay in the production and issuance of these cards, USCIS has announced that employers may use I-797 Notices of Action (Approval Notices) for Form I-9 verification. To use for Form I-9 verification, the Approval Notices must be dated on or after December 1, 2019, through and including August 20, 2020. USCIS clarifies that employers who use the Approval Notice for such Form I-9 verification must complete the reverification process with the actual EAD card issued (or other appropriate List A, B, or C evidence) by December 1, 2020. For more information, please see the USCIS announcement.

Recent Expansion of National Interest Exceptions to Presidential Proclamations Implementing Travel Bans

On August 12, 2020, the U.S. Department of State (DOS) published significant exceptions to Presidential Proclamations 10014 and 10052. These proclamations suspended the entry of certain immigrants and nonimmigrants to the U.S. until December 31, 2020.

Presidential Proclamation 10052 specifically suspended entry to the U.S. of certain applicants for H-1B, H-2B, and L-1 visas; J-1 visa applicants participating in the intern, trainee, teacher, camp counselor, au pair, or summer work travel programs; and any spouses or children of covered applicants applying for H-4, L-2, or J-2 visas. A summary of this and other immigration-related Proclamations can be found here.

The August 12 announcement provides guidance to consulates and visa applicants as to who may qualify for a National Interest Exception to the Proclamation. 

Note that many consulates are still closed for routine visa services. According to DOS: “Applicants who are subject to any of these Proclamations, but who believe they may qualify for a national interest exception or other exception, should follow the instructions on the nearest U.S. Embassy or Consulate’s website regarding procedures necessary to request an emergency appointment and should provide specific details as to why they believe they may qualify for an exception.  While a visa applicant subject to one or more Proclamations might meet an exception, the applicant must first be approved for an emergency appointment request and a final determination regarding visa eligibility will be made at the time of visa interview.  Please note that U.S. Embassies and Consulates may only be able to offer limited visa services due to the COVID-19 pandemic, in which case they may not be able to accommodate your request unless the proposed travel is deemed emergency or mission critical.  Prospective visa applicants should visit the website for Embassy or Consulate where they intend to apply for a visa to get updates on current operating status.  Travelers who are subject to a regional COVID-19 Proclamation but who do not require a visa, such as ESTA travelers (i.e., those traveling on the Visa Waiver Program), should also follow the guidance on the nearest Embassy or Consulate’s website for how to request consideration for a national interest exception.”

We are still waiting for additional information on how and when these emergency appointments will be granted and how much documentation will be needed for such an approval.

Expansion of Interview Waiver Eligibility

Information has just been released by the State Department and the Department of Homeland Security (DHS) temporarily expanding the waiver of the in-person interview requirements for foreign nationals seeking nonimmigrant visas. Under prior rules, consulates could waive the in-person requirement for those seeking renewal in the same visa classification if the prior visa had expired within 12 months of the time of the renewal. This temporary extension extends this time period to 24 months. In providing this information, the State Department indicates that this temporary change will assist the consulates in their social distancing practices and avoid COVID-19 exposure to consular officers, visa applicants and others. This recent announcement may also be a step toward consulates resuming possible operations and visa processing.

Conclusion

We have and continue to see many changes in business immigration due to COVID-19 and developments coming out of the USCIS, State Department and the White House. More changes are expected to come, and we will keep you updated. Additionally, please join our team for further information on these and other immigration hot topics during our scheduled webinar on September 3, 2020.