By Sang Shin
The COVID-19 pandemic has led to swift implementation of law and policy from the U.S. government, which has further created shifts in strategy and planning by 1) companies in the U.S. that sponsor foreign nationals workers, and 2) foreign national investors who own businesses in the U.S. In sum, with “shelter-in-place” orders issued by local and national governments around the world and businesses transitioning into “work-from-home” environments, most foreign nationals find that they are either stuck outside of the United States with a need to enter the country; or stuck inside the U.S. when they had plans of traveling internationally.
This disruption in business, slow-down of government agencies, and moratorium on most travel is likely to create longer processing times and a backlog in adjudication once all operations resume to “normal.” Companies can expect to face short-term questions on furloughs, layoffs, and unpaid leave for their foreign national employees. Depending on the type of visas that those employees hold, if not navigated correctly, a company may remain liable for paying the foreign national’s wages. Additionally, parallel questions on whether foreign national workers can accept unemployment benefits will have to be evaluated – though in most cases those benefits would likely not be available depending on state program requirements.
Below, please find a bullet-point summary of various COVID-19-induced changes that have taken place over the last month.
- Travel Bans and Canceled Flights: The general guidance for any individual who has returned/entered the United States from international travel is to stay at home for 14 days – monitoring their health and practicing social distancing. However, the United States has temporarily banned outright travel from certain nations if there has been travel to those nations within a specific time period – except for U.S. Citizens and Lawful Permanents Residents. For example, foreign nationals from the Schengen area of Europe (which includes countries such as Germany, Italy, and France), as well as the United Kingdom, are not able to enter the United States if they were in any of those countries in the last 14 days. Still, even if they clear that hurdle, many international flights are being canceled by a majority of airlines around the world which has further complicated travel even if the option to leave or enter the US were available.
- U.S. Department of State: A majority of Temporary and Permanent Visa processes that are applied for at the U.S. Embassies and Consulates abroad have temporarily been canceled, and applicants are being asked to reschedule their appointments for a later date.
- U.S. Citizenship and Immigration Services (USCIS): USCIS is the benefit-granting arm of the Department of Homeland Security. USCIS has closed their local field offices and they have suspended all in-person interviews and appointments. The major USCIS Service Centers, as of this moment, remain open and are accepting physical filings and are temporarily accepting electronic copies of original signatures. They have also temporarily suspended acceptance of “premium processing services,” which provides a faster adjudication period for petitions filed with USCIS. Further, USCIS has extended the expiration dates by an additional 60 days for a Request for Evidence or Notice of Intent to Deny issued between March 1, 2020, and May 1, 2020, and has provided guidance for companies in completing I-9 forms where Work-From-Home policies have been implemented.
- U.S. Customs and Border Protection (CBP): CBP officials are generally stationed at the various ports of entry at our borders and international airports, including the major airport hubs in Canada. CBP continues to remain operational as they assist at the airports in screening those entering the U.S. Moreover, CBP has provided guidance regarding its “Satisfactory Departure” program, which is designed to extend the stay of foreign nationals who entered the U.S. under the ESTA Visa Waiver program. Those who are granted Satisfactory Departure will have their stays in the U.S. extended for an additional 30-day period.
- The Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) v. Public Charge: The CARES Act was recently passed by Congress and has provided many businesses and employees with an option for immediate relief in the form of unemployment benefits for employees and the ability to seek out SBA-backed loans (PPP or EIDL) for U.S. businesses. The Act confirms that foreign nationals who file U.S. tax returns may qualify for stimulus relief under the Act if they are “nonimmigrant” or temporary visa holders. Further, it should be noted that if a foreign national has to seek medical assistance to treat or combat COVID-19, USCIS has unequivocally confirmed that any means used to do this would not count towards the Public Charge rule (see below) and would not be a ground for inadmissibility. However, current immigration policy does not allow for foreign nationals to accept certain “means-tested” benefits or they may be considered to be “inadmissible” on “public charge” grounds. Though there may likely be some understanding by Officers as they review future petitions and applications, it is difficult at this point in time to say that accepting federal assistance that comes from the CARES Act would not count against a foreign national in the future under the Public Charge rule. It should be noted that if a foreign national is able to receive Unemployment Insurance based on state program requirements, then it would likely not be considered a public charge under federal immigration law.
- Foreign investor-owned U.S. companies are also eligible to apply for SBA-backed loans (PPP or EIDL) just as any other U.S. company would qualify, so long as they are eligible per SBA guidelines. The SBA regulations state that “businesses in the U.S. owned by aliens may qualify” for SBA loans.
Immigration policies/procedures and how they interplay with new laws such as the CARES Act will continue to evolve during this uncertain period of time. Jackson Walker will continue to update immigration-related updates as they become available.
Sang Shin is an experienced immigration attorney with a demonstrated history of successfully representing clients in their immigration matters. Sang advises clients through various immigration applications, including but not limited to: L-1, H-1B, TN, B-1/B-2, B-1 in lieu of H-1B, B-1 OCS, F-1, E-2, E-3, O-1, EADs, Advance Parole as well as PERM Labor Certification, I-140 Immigrant Petitions in the EB1, EB2, and EB3 categories along with Adjustment of Status and Naturalization. Sang’s extensive background working with clients on their immigration matters allows him to assist clients in all aspects of labor and employment-based visas, investment-related visas, naturalization, permanent residence processes, and immigration compliance.
Please note: This article and any resources presented on the JW Coronavirus Insights & Resources site are for informational purposes only, do not constitute legal or medical advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Jackson Walker. The facts and results of each case will vary, and no particular result can be guaranteed.