Immigration and Related Matters

USCIS has suspended its operations until at least April 1st – including premium processing of all I-129 and I-140 petitions. Scheduled appointments and interviews are postponed and notice from USCIS should be received confirming postponement. Similarly, the U.S. State Department (DOS) has suspended immigrant and nonimmigrant visa application appointments at all consular posts.

DOS has indicated that exceptions may exist for the purposes of obtaining a visa overseas but that the relevant, issuing embassy or consulate should be contacted directly.

Additionally, current visa holders subject to I-94 periods of admission may be able to request an extension of stay for up to 30 days if unable to depart the U.S. for COVID-19-related reasons. Specifically, this possible extension is currently available for those admitted through JFK International Airport or Newark Liberty International Airport.

Lastly, the Department of Homeland Security (DHS) has provided that “flexibility” will be granted in relation to I-9 compliance during the COVID-19 pandemic. This means that employers implementing restrictions on physical presence of employees will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, Section 2 documents must be inspected remotely with three business days, and copies of such documents must still be obtained, inspected, and retained. “COVID-19” should be entered as the reason for delayed physical inspection in the Section 2 “Additional Information” field once physical inspection takes place after normal operations resume. Upon physical inspection, “documents physically examined” and the inspection date should be entered in the same field, or Section 3 as appropriate.

DHS’s guidance on I-9 compliance is valid for 60 days from March 20, 2020, or three business days after termination of the National Emergency, whichever is first. To use this option, employers must have written documentation of their remote onboarding and telework policy for each employee. Upon the return of normal business operations, employees onboarded using remote verification must report to the employer within three business days for in-person verification.

Further, and quite importantly, the above “flexibility” will only be afforded to those operating remotely. Where employees are physically present at work, no exceptions to I-9 compliance have been provided. However, if a business is closed, then the Form I-9 requirements are tolled because, it is not considered a “business day” for Form I-9 purposes. Again, the employer should note this on the Form I-9 and ideally in an attached memo if it would otherwise appear that the form was not timely completed.

Andrew Howe, Attorney (NC), BridgehouseLaw LLP
Post: March 25,2020