As of May 1, 2020, when employers verify identity and employment authorization for their employees, they must use the October 21, 2019, edition of Form I-9, Employment Eligibility Verification.
On March 12, we recommended that employers designate authorized representatives to complete and reverify Forms I-9 in person during COVID-19 closures and furloughs. On March 24, we updated our guidance in detail because, in response to COVID-19, USCIS began allowing employers and employees to complete Forms I-9 remotely. The agency has now further relaxed I-9 verification requirements.
Since 1990, the United States has granted up to 50,000 green cards each year to immigrants selected through the “Diversity Visa Lottery.” Recently, the US Department of State announced delays in processing these cases due to COVID-19. This development further exacerbates challenges caused by COVID-19, including the temporary suspension of visa appointments and USCIS in-person services, which we reported on last month, and the April 22 Executive Order halting immigrant visa admissions for 60 days. See our analysis of the Order here.
The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process, or if already pending, when the final step can be adjudicated.
Below is a summary of the May Visa Bulletin, including Final Action Dates and changes from the previous month.
China: EB-1 advances five weeks to July 15, 2017; EB-2 moves ahead one month to October 1 2015; and EB-3 advances one month to May 15, 2016
India: EB-1 jumps ahead three months to August 1, 2015; EB-2 continues to creep forward, advancing eight days to June 2, 2009; and EB-3 advances five weeks to March 1, 2009
All Other Countries: EB-1 becomes current for the first time since July 2018; EB-2 remains current; and EB-3 remains stalled at January 1, 2017
NOTE 1: USCIS has not yet announced if it will accept I-485 applications in May based on the Department of State’s Dates for Filing chart.
On the night of Monday, April 20, 2020, the President tweeted that he would “protect” American jobs during the COVID-19 crisis by issuing an Executive Order that would “temporarily suspend immigration.” After several uncertain days of conflicting information, reported in the media, about how sweeping the scope of the order would be, it turns out to affect a very small subset of intending US immigrants: those who are outside the United States and will immigrate here by obtaining an immigrant visa.
On April 22, 2020, the White House issued the order, entitled “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.”
When does the suspension take effect and how long will it last?
The suspension takes effect at 11:59 p.m. Eastern Daylight Time on April 23, 2020, and will expire after 60 days, although provision is made for a possible extension.
Who does the suspension affect?
The proclamation suspends admission to the United States only for those who apply for and obtain immigrant visas at US embassies or consulates abroad during the next 60 days.
Are there any exceptions to the 60-day suspension for people with immigrant visas?
Yes. Those who have or obtain valid immigrant visas in their passports as of today will still be admitted. Those who have, or later obtain, other types of valid immigrant travel documents – such as permanent resident cards (“green cards”), advance paroles, boarding foils or transportation letters – will also be admitted during the 60-day suspension period.
In addition, the suspension does not apply to spouses, minor children and adoptees of US citizens; health care professionals; EB-5 investors; members of the military and their immediate family members; and several other national-interest categories. These individuals may still obtain immigrant visas and may still be admitted to the United States during the 60-day suspension period.
What is an “immigrant visa”?
People who are sponsored by family members or employers, as well as people in a handful of other categories that do not require sponsors, may immigrate from their home countries to the United States permanently after obtaining immigrant visas in their passports. In most cases, sponsors must first complete lengthy and difficult preliminary filing steps. Even after those steps are successful, most intending immigrants still have a years-long wait before they may apply for immigrant visas because, in most green card categories, the demand greatly outstrips the annual supply of visas and wait lists must be established.
Can sponsors still file the preliminary steps?
Yes. Family-based sponsors may still file Form I-130 with US Citizenship & Immigration Services, and employers may still file Form I-140. Employers may also continue filing PERM labor certification applications with the US Department of Labor in those green card categories that require that preliminary step. There is no suspension on all preliminary filing steps for all categories of green cards.
Can intending immigrants still be admitted with advance parole or refugee travel documents? Can permanent residents still be admitted with green cards or reentry permits?
Yes. Anyone who currently has – or later obtains – one of these valid travel documents will still be readmitted to the United States if otherwise eligible for admission. The proclamation has no impact on these types of admissions.
Can intending immigrants who are inside the United States still apply for green cards?
Yes. The proclamation does not apply to intending immigrants unless they are outside the United States as of the date and hour the proclamation takes effect and apply for an immigrant visa at a US consular post. This means people who are inside the United States and applying for adjustment of status are not affected.
What is “adjustment of status”?
When the required preliminary filing steps have been done, and a green card number is available in the individual’s specific category, an intending immigrant who is eligible to apply from within the United States files a Form I-485 Application To Adjust Status with USCIS. This is the final step of a green card process and is the domestic alternative to applying for an immigrant visa abroad. People who were lawfully admitted and have maintained valid US immigration status throughout their stay – with some exceptions – are eligible to file for adjustment without leaving the United States.
Can employers still sponsor nonimmigrants for temporary work-authorized status?
Yes. The proclamation has no effect whatsoever on any petitions or applications that are filed domestically with USCIS and processed by that agency. These filings include nonimmigrant petitions filed on Form I-129; immigrant petitions filed on Forms I-130, I-140 and I-360; change or extension of status applications filed on Form I-539; work and travel authorization applications filed on Forms I-765 and I‑131; and adjustment of status applications filed on Form I-485, as explained above.
Can nonimmigrants on temporary visas still be admitted?
Yes. The proclamation has no effect whatsoever on the admission of people who hold temporary nonimmigrant visas, such as B-1/B-2, E-1 and E-2, F-1, H-1B, L-1, O-1, P-1, and TN visas. Although US consular posts worldwide are still closed due to the COVID-19 pandemic, these nonimmigrants may also still apply for and obtain these nonimmigrant visas in their passports if consulates reopen during the 60‑day suspension period.
Are temporary visa programs at risk?
The proclamation directs the US Secretaries of Labor, Homeland Security and State to review these programs over the next 30 days and recommend “other measures” to “ensure the prioritization, hiring, and employment of United States workers.” What those measures might be is unknown at this time. Please subscribe to our blog for updates on any major developments.
On March 23, 2020, we wrote about the impact of the global pandemic on travel between the United States and neighboring countries, in COVID-19: How Does the Outbreak Affect Travel Between the United States and Mexico or Canada? We explained that the US, Mexican and Canadian governments had agreed to close their contiguous borders between March 20 and April 20, 2020, and then reassess whether borders should be reopened depending on the progress of the pandemic.
On March 30, 2020, we wrote about “satisfactory departure” in COVID-19: How Does the Outbreak Affect Visa Waiver (ESTA) Travelers? As we explained, visitors to the US who arrive under the Visa Waiver program who cannot depart within 90 days due to the pandemic may request a 30-day “satisfactory departure” period from US Customs & Border Protection by email.
On April 13, 2020, US Citizenship & Immigration Services announced it would begin taking requests for satisfactory departure by phone while its local field offices remain closed during COVID-19. Visa Waiver travelers who wish to use this option should call the USCIS Contact Center at 800-375-5283. USCIS has also said it can grant a second 30-day period of satisfactory departure if circumstances warrant.
US Customs & Border Protection also continues to grant satisfactory departure, as we reported on March 30.
Receiving satisfactory departure, whether it is granted by CBP or by USCIS, protects a traveler’s eligibility to continue using the Visa Waiver program in the future, as long as the visitor does leave within the required additional period of stay.
Unemployment insurance, as described in a recent blog post by our Labor and Employment colleagues, is a “joint federal-state program, administered separately by each state following guidelines established by federal law.” While the requirements of these programs vary from state to state, eligibility criteria generally exclude nonimmigrants whose work authorization is tied to a specific position with a specific employer (e.g., TN, H-1B, and L-1 workers).
President Trump signed the eagerly awaited Coronavirus Aid, Relief, and Economic Security (CARES) Act on March 27, 2020. What does it mean for people who are affected by COVID-19 and living here on work-authorized visas? They, like their colleagues who are US citizens and permanent residents, have also been furloughed without pay, laid off, and affected by university closures. But, unlike their colleagues, nonimmigrant workers are also at risk of involuntarily violating or even losing their US immigration status during COVID-19. To understand why, see our earlier blog, COVID-19: How Do Furloughs Affect Nonimmigrant Workers? Unfortunately, the Act is silent on the fate of these workers. While it provides general relief that may also aid nonimmigrants, their eligibility for that relief is not entirely clear.
The COVID-19 pandemic has disrupted travel across the globe. Many US travelers who entered under the Visa Waiver Program (commonly called “ESTA,” the acronym for the online pre‑authorization system) now find themselves on the horns of a dilemma: leave at the end of their 90-day authorized stay and thus endanger their own health and potentially that of others, or overstay due to COVID-19 travel restrictions.