The Department of Homeland Security announced that it will defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9).  As employers and employees observe social distancing precautions, employers can now inspect Section 2 documents remotely via video link, fax or email, etc.  However, please note the following important steps:

• Employers must view Section 2 documents, even if remotely, within 3 business days of hire date;
• Documents submitted via email/fax/etc. must be retained;
• Once physical examination is conducted:
  • Employers should enter “COVID-19” in the “Additional Information” box on Section 2;
  • Employers should add “Documents physical examined [INSERT DATE]” in the “Additional Information” field on Section 2.
  • The explanation for the delay should also be added on a memo attached to the employee’s I-9 file.
  • Once normal operations resume, employees must present the original documents used during remote verification within 3 business days.  Employers should add the date in which in-person verification took place in the “Additional Information” field on Section 2.

Employers may implement the above provisions for a period of 60 days from March 20, 2020 OR within 3 business days after the termination of the National Emergency, whichever comes first.

The above rules only apply to employers and workplaces that are operating remotely.  If employees are physically present at a work location, normal I-9 verification rules apply.

If you have any questions regarding I-9 compliance, please contact your Graham Adair representative.

For petitions filed on March 21, 2020 and beyond, USCIS will begin accepting reproduced original signatures on forms and documents, including Form I-129. A document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy is of an original document containing an original handwritten signature. USCIS will not accept signatures created by a typewriter, word processor, stamp, auto-pen, or similar device. The signatory must have authority to sign on behalf of the petitioning entity.

Petitioners or applicants who submit an electronically reproduced original signature must keep copies of the original documents containing the “wet” signature. At their discretion, USCIS may request the original documents at any time. Failure to produce the original document can negatively impact the application.

If you have any questions, please contact your Graham Adair representative.

Effective March 20, 2020, USCIS cited staffing concerns due to COVID-19 in announcing it will temporarily suspend premium processing for all Form I-129 and I-140 petitions until further notice. The suspension applies to the following categories:

• I-129: E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-1 and TN-2.

• I-140: EB-1, EB-2 and EB-3.

Premium processing will remain suspended for all FY 2021 H-1B cap petitions.

USCIS will process any previously accepted premium processing (Form I-907) requests, but will not be able to send notices using pre-paid envelopes. Petitioners who have filed Form I-129 or Form I-140 via premium processing but have not received any agency action within the 15-calendar-day period will receive a refund.

Premium processing requests that were mailed before March 20, 2020, but accepted after this date, will be rejected. USCIS will send an announcement once premium processing is available.

If you have any questions, please contact your Graham Adair representative.

To comply with the social distancing guidelines to limit the spread of the COVID-19 virus, more employees are working from home. Despite this change, it’s important for HR professionals to help make sure their company stays compliant with employment verification and related requirements – which have not been relaxed (at this time) by the federal government.

In fact, there is language on USCIS’s  Special Situations webpage that states, “All requirements for Form I-9, Employment Eligibility Verification, completion and E- Verify remain in place.”

Here are 9 of the most important issues and questions U.S. HR departments may have regarding I-9 employees:

1. Has USCIS announced any suspension of Form I-9 or E-Verify requirements?

No. As of this date, the Form I-9 (and E-Verify, if applicable) must still be completed following the existing requirements.

2. What are viable options for completing Form I-9 in remote work scenarios?

Section 1 of the Form I-9 is completed by the employee. Employers should provide the new hire with the Form I-9 and the instructions to complete Section 1 on or before the date of hire. Despite the challenges of remote employment, the employer is still legally required to complete Section 2 of the I-9 within three business days of hire (or on the first day of work for pay if the duration of employment will be three days or less). Re-verification is also required to be completed timely (to ensure that the Form I-9 reflects employment authorization covering every day of employment).

One strategy for compliance is to authorize an agent, also referred to as an “authorized representative,” to act on the employer’s behalf to complete Section 2 or re-verify employment authorization. To document that the agent is acting on the employer’s behalf, the best practice is to send clear written instructions for the agent performing this service. To verify the agent is acting appropriately, many employers will have someone on the phone or present via webinar to observe the Form I-9 process. Keep in mind the agent is acting on the employer’s behalf. Therefore, any mistakes made by the agent will be attributed to the employer.

The process of verifying original documents must occur in-person. Make sure whoever is tasked with the verifying is following current CDC guidance relating to reduction of the risk of virus transmission.

3. To comply with social distancing recommendations, can a family member already in the household act as a 3rd party?

Yes, but it’s not an ideal situation. If, due to the employee having to self-isolate and/or quarantine, a family member or health care provider acts as the agent, then the employer needs to make sure Section 2 of the Form I-9 has been completed correctly. The employer should review the Form I-9 as soon as possible and take any required corrective action (clearly noting when changes were made and by whom on the face of the document) as quickly as possible.

It may be wiser to instead wait to complete Section 2 of the form until the employee is in the office and able to meet with the employer in-person to complete the form. Opting to have a late-completed form for the sake of having more control of verifying that the documents presented appear to be genuine and relate to the employee may pay off in the end.

4. If I cannot find anyone to verify a remotely hired employee, should I verify the documents through Skype or Zoom or some other video communication?

No. As for now, the law still requires physical inspection of documents for I-9 purposes.

5. If we normally use an electronic I-9 system, how should remote I-9s be handled?

It is perfectly fine to maintain the I-9 electronically, providing doing so complies with the applicable regulations for electronic I-9 retention. But remember: the use of electronic on-boarding systems does not excuse physical inspection of I-9 documents.

6. What should my company include in the recommended file memo for forms created in this period?

Per 8 CFR §274a.2(b)(2), the Form I-9 must be retained for the entire duration of each individual’s employment plus at least one additional year (three years from the date of hire or one year from the date of termination, whichever is later).

In the event some Form I-9s were completed late or did not have copies of documents attached due to the challenges created by the COVID-19 pandemic, then be sure to write explanatory notes in Section 2. In the event of an inspection or other investigation, those notes and other evidences should confirm your company did all it could to stay compliant despite the trying circumstances.

7. Does suspension of employer operations impact the employment verification requirements?

Yes. 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, remember to note this on the Form I-9.

8. How does my company receive copies of the documents if an agent was used?

If sections 2 and 3 of the Form I-9 was completed remotely by an agent, your best practice would be for the person acting as the employer’s agent to make copies and deliver them to you. Or, you can make a copy of the documents as soon as the employee can bring them in. However, then you have the challenge of confirming that the documents presented are the same as those used for Form I-9 completion.

9. How can my company ensure we provide clear communication throughout this outbreak?

Because employers and employees are dealing with many difficult issues during this extraordinary time, clear, concise and frequent communication – along with smart policies and proper procedures – are critical. Here are some tips to keep in mind:

• Create a file memo. This provides a record for future possible enforcement action.
• Clearly communicate to employees the steps you’re taking in response to the pandemic and any related changes in procedures. Make sure all your actions are based on valid business and compliance-related factors. This will help to mitigate risk of any discrimination-related claims or enforcement.
• Do not prescribe which document(s) should be presented by the employee. This will help you avoid violation of the anti-discrimination provisions found in 8 CFR §274b. The employee must choose which documents to present for verification or re-verification purposes. Always provide a copy of the List of Acceptable Documents attached to the Form I-9.
• Great care should also be taken in how the Form I-9 (and document copies, if applicable) completed by an agent are stored and transmitted to your company so that personally identifiable information (PII) is protected.
• Be sure to use the new Form I-9 version (10/21/2019 edition date) starting no later than May 1, 2020.
• Lastly, it’s a good idea to create an action plan of priorities that balances the competing factors and document the same so it’s 1) clear any actions were taken out of both caution and for the sake of I-9 compliance during this global pandemic and 2) the actions you take were deemed in your employees’ best interest during these challenging times.

Please contact your Graham Adair representative with any questions.

As of March 20, 2020, The Dept. of State is temporarily suspending routine visa services at U.S. embassies and consulates worldwide due to the COVID-19 pandemic.  All visa appointments are cancelled as of this date.  Paid Machine Readable Visa (MRV) fees will remain valid within one year of the date of payment, so those who have already paid MRV application fees will still be able to use them for a future appointment.

Embassies and consulates will provide urgent and emergency visa services, and services to U.S. citizens, as resources allow.  Emergency visa appointments can still be made. Each embassy has its own rules for requesting emergency visa appointments, so check the website for the embassy where you plan to apply. Requests based on business emergency generally need to be supported by a company letter attesting to the loss of a significant business opportunity.

The ESTA website (Visa Waiver Program) will remain active, but suspension of entry remains in place for travelers from countries listed in the Proclamation* as of March 16, 2020.

*Proclamation-Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus, as of March 16, 2020 covers the following countries: China, Iran, 26 countries in the Schengen Area, United Kingdom and Ireland.

If you have any questions, please contact your Graham Adair representative.

Today, USCIS announced the closing of all field offices. As of yesterday, only field offices in the Bay Area were impacted. However, USCIS has expanded closures to include all field offices. It should be noted that USCIS regional centers currently remain open and will continue processing petitions for the time being.

The closure of field offices impacts Naturalization ceremonies, Adjustment of Status interviews, pushing back approvals of Lawful Permanent Residence and the issuance of corresponding green cards. Biometrics appointments are also affected, which will delay the issuance of EAD cards and Advance Parole documents for those applying for Adjustment of Status, and will push back approvals for H-4 spouses.

When normal operations resume, USCIS will affirmatively reschedule biometrics appointments. A new appointment letter will be sent by mail. Individuals who had InfoPass or other appointments must reschedule

As for the H-1B Cap, as long as Regional Centers remain open, USCIS should accept filings starting April 1st, although as we reported yesterday, USCIS has suspended premium processing on H-1B Cap filings.

This is a very fluid situation, so we will continue providing updates as they become available.

To receive the latest updates on this issue, please follow us on Twitter (@GrahamAdairLaw).

• First phase: No later than May 27, 2020, cap-subject petitions including those eligible for the advanced degree exemption, requesting a change of status from F-1 status, will be eligible to upgrade to Premium Processing.

• Second phase: No earlier than June 29, 2020, Premium Processing will resume for all other cap-subject petitions. USCIS will announce the exact date for resuming Premium Processing at a later time.

Due to the current situation with COVID 19 and the Bay Area’s mandatory shelter in place, local USCIS Field Offices have made adjustments that will impact immigration benefits. Specifically, Adjustment of Status interviews will be impacted, pushing back approvals of Lawful Permanent Residence and issuance of corresponding green cards. Biometrics appointments are also affected, which will delay the issuance of EAD cards and Advance Parole documents for those applying for Adjustment of Status, and will push back approvals for H-4 spouses.

Local USCIS Field Offices in the Bay Area are taking the following actions:

San Francisco: Cancelling interviews from 3/17 to 4/6. Officers will be attempting to contact all scheduled interviewees and attorneys to advise interviews will be rescheduled.

The Appointment Services Center will be closed as of 3/17. USCIS will automatically reschedule Biometric appointments due to the office closure via mail. If a client had an InfoPass appointment they can reschedule by contacting USCIS Contact Center.

Requests for Evidence that are due during the closure for the San Francisco Field Offices will have a one-month extension.

San Jose: Cancelling interviews from 3/17 to 4/7. Clerks are calling applicants to advise they will be rescheduled. Rescheduled interviews are likely to be in late May or June.

The Appointment Services Center will be closed as of 3/17. USCIS will automatically reschedule Biometric appointments due to the office closure via mail. If a client had an InfoPass appointment they can reschedule by contacting USCIS Contact Center.

Requests for Evidence that are due during the closure for the San Jose Field Offices will have a one-month extension.

Sacramento: Cancelled Naturalization Oath Ceremony scheduled on 3/24 at the McClellan Conference Center. They will mail information regarding the rescheduled ceremony

Fresno: Remains open and continues to interview applicants. They are allowing applicants to reschedule without needing to provide documentation for the reason for rescheduling. To postpone an interview in Fresno requests that we please contact the 800 number (800-375-5238) and/or mail a letter requesting rescheduling to the Fresno Field Office at USCIS Fresno Field Office, 744 P Street, Suite 120, Fresno, CA  93721.

San Francisco Asylum Office: Closed to the public as of 3/17. Interviews will be rescheduled at a later date.

Santa Rosa Appointment Services Center: Closed as of 3/17

Oakland Appointment Services Center: Closed as of 3/17

Salinas Appointment Services Center: Closed as of 3/17

Graham Adair continues to closely monitor this ongoing situation and will provide updates as they become available. Please contact us with any questions or concerns.

UPDATE

On February 28, 2020 Graham Adair published a Global Mobility per country advisory in light of the Novel Coronavirus. Since then, the virus has significantly spread into Europe and the United States triggering a few countries to significantly change their immigration policies to combat the spread of the virus.

UNITED STATES

On March 11, 2020, President Donald J. Trump issued a proclamation suspending the entry of foreign nationals who have been in any European country/Schengen country during the 14 days prior to their scheduled arrival to the United States. The proclamation does not apply to US nationals/US residents, immediate family members of US nationals, and other individuals identified in the proclamation.

It is expected that the Department of Homeland Security will implement a supplemental Notice of Arrivals Restriction procedures to conduct tests at airports for those traveling from the European countries identified in the proclamation. The supplemental measure will likely apply to all US nationals/residents/exempted individuals and will require them to travel through select airports where the United States Government will have screening procedures.

The countries identified in the proclamation include: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland

ISRAEL

Currently, Israel has a ban-on-entry policy of non-Israeli nationals who have visited China, Thailand, Hong Kong, Macau, Singapore, South Korea, Japan, Italy, Germany, France, Switzerland, Spain, and Austria.

On March 12, 2020, the Israeli government, in conjunction with the Ministry of Health, will issued a total ban-upon-entry policy which will prevent all non-Israeli nationals from entering Israel unless they can prove, before entry with a consulate abroad, the location/residence where they will be quarantined. It was advised that “home isolation” cannot be replaced by a stay in a hotel room. If they cannot prove the location where they will be quarantined, they will be sent back – this determination will be at the sole discretion of consular officials.

SINGAPORE

On March 04, 2020, the Ministry of Manpower (hereinafter MoM) issued a directive requiring all passholders, and their respective dependents, entering Singapore exhibiting a fever, respiratory illnesses, or related symptoms to undergo a COVID-19 swab test at the port of entry regardless of the countries they have visited.

Once tested, the entrants may enter Singapore and will be contacted about their results after 3 – 6 hours. Those with positive results will be sent to the hospital.

Singapore currently maintains a pre-approval policy which requires pass holders who have traveled to China, South Korea, Iran, and Italy, to secure MoM’s approval before entering Singapore. Pass holders with Hubei-issued passports or with recent travels to Hubei should defer their travels to Singapore.

If approved, the pass holders will be required to serve a 14-day mandatory home quarantine upon entry.

Pass holders who refuse testing and the quarantine policies set out by MoM, may be subject to significant penalties, including, but not limited to, having their work pass privileges revoked and/or face prosecution under the Infections Diseases Act

How to Prepare Your Business

Given the current trend from the United States, Israel and Singapore, it is highly likely that countries will follow in the same direction imposing either a pre-approval immigration policy, or a total-ban immigration policy, for non-residents. Businesses should be prepared for sudden changes in business and work travel for the time being. Graham Adair is dedicated to ensuring full employer compliance and providing the most up-to-date information on country responses to the Coronavirus. Graham Adair continues to closely monitor global trends and policies for several countries across the globe, since this situation is ongoing, please note that information may change. Please do not hesitate to contact us for any information or with any concerns

The novel “Coronavirus” has now spread to over 50 countries internationally and certain countries are taking immigration-related measures to attempt to control or slow the outbreak of the virus. The Coronavirus is affecting the ability for people to travel around the globe for business or work purposes, especially those requiring immigration permissions to enter their intended country of travel. This information is quickly changing as more countries start to develop their own in-country immigration policy restrictions and guidance.

UNITED STATES

The United States has issued a directive temporarily barring foreigners from entering the United States if they have been to China within the last 14 days. Exceptions have been made for immediate family members of US nationals and permanent residents. Hong Kong and Macau, however, are excluded from the travel ban. The US consulates in China are currently not processing any visa applications.

UNITED KINGDOM

The UK Government has imposed significant restrictions between the UK and China with many commercial flights to China being suspended. In response to the heightened security measures, employers should forbid work-related travel to China. Employers/sponsors are not required to report absences nor withdraw sponsorship for extended absences stemming from the Coronavirus as it is considered an exceptional circumstance.

In response to the virus outbreak, Visa Application Centers (VAC) operated in China, through VFS, are closed until further notice. Thus, foreigners seeking to enter the UK from China may find it impossible to attend interviews to apply for their visas.

It has been reported that the closed VAC’s hold several individuals’ passports despite their offices being closed. Individuals with passports currently being held at a VAC should contact the authorities, and or, their respective consular authorities to obtain an emergency travel document.

The Home Office issued guidance which indicates that Chinese nationals who are in the UK with upcoming visa expiration dates between now through March 30, 2020 will receive an automatic extension on their visas through March 31, 2020. Depending on the status of the Coronavirus, the extension policy may be revised.

The UK government has advised that foreigners who have returned from the Wuhan or Hubei provinces in China should self-quarantine for 14 days even if they do not show any symptoms of illness. Foreigners who have traveled from other Chinese provinces are advised to closely monitor their heath. Employers who have employees to whom the above directives apply should prevent them from going into work until after the 14 days, and, until after their symptoms subside.

SINGAPORE

The Singaporean Ministry of Manpower (MOM) has issued an advisory to abandon all travel plans to the Hubei province in China and also to only travel to Mainland China on very selected circumstances.

As of January 31, 2020, until further notice, MOM will reject all new Employment Pass applications (or any work permit applications) for applicants from China. Renewal applications, however, will remain unaffected.

As of February 18, 2020, foreign employees who have traveled to China within the last 14 days from their arrival to Singapore are required to obtain MOM’s pre-approval. Employers are required to submit the online form at least 3 days before the intended date of arrival. The foreign employee must have the approval letter at the time of entering Singapore.

Work Permit holders who successfully enter Singapore from China will be issued a 14-day Stay Home Notice (SHN) where they must self-quarantine themselves at their place of residence. During this time, work permit eligible employees who have work permits approved, but must complete the immigration work permit pass process, may not proceed with finalizing their processes until after the 14-day period ends.

MOM will be enforcing strict penalties against employers who attempt to circumvent the above procedures.

INDIA

The Indian authorities issued a directive which restricts any Chinese nationals and foreigners traveling from China to enter India through March 2020. The restrictions apply at all ports of entry, including, air, land, seaport, and land borders with Nepal, Bhutan, Bangladesh, and Myanmar.

Effective immediately, the Indian government has suspended all existing issued visas issued to Chinese passport holders (both regular sticker visas, as well as e-visas), issued prior to February 05, 2020. Any hardship concerns should be brought up to the Indian embassy in Beijing, or consulates in Shanghai and Guangzhou for a new visa. This specific policy does not apply to other foreign nationals entering India from China.

ISRAEL

The Israeli authorities have closed land crossings, seaports, and airports to arrivals from China, except to permanent residents and Israeli nationals, who must self-quarantine themselves for 14-days if arriving from China.

More recently, Israel has extended the ban to foreigners entering Israel from Hong Kong, Macau, Thailand, Singapore, Japan, and South Korea.

VIETNAM

The Vietnamese Embassy in China has stopped issuing all types of visas (Tourist, business, and work) to Chinese nationals and to all other foreign nationals applying for visas in China. Foreign nationals applying for a visa-on-arrival, must have a pre-approval letter and establish they are not coming from China, Hong Kong, or Macau.

JAPAN

The Japanese government (GOJ) has issued a directive which has banned people who have been infected with the Coronavirus from entering the country. As of February 18, 2020, any foreigner who has traveled to China in the last 14 days from the date of entry into Japan, and foreigners who have a Chinese passport issued in the provinces of Hubei and Zhejiang, will not be allowed entry except in special circumstances.

AUSTRALIA

The Australian Department of Foreign Affairs (DFAT), has issued a notice to not travel to China. They have issued a directive that Foreign Nationals who are in China will not be granted entry to Australia until 14 days after they have left China.

Australian permanent residents and citizens, as well as their immediate family, will still be allowed to enter China.

CZECH REPUBLIC

The Czech government has suspended flights to and from China and have halted the issuance of visa at Czech visa application centers. An exception to the widespread restrictions are for family members of Czech nationals who may apply for short-term Schengen visas at the consulate in Shanghai.

What Can You Do?

Graham Adair is dedicated to ensuring full employer compliance and providing the most up-to-date information on country response to the Coronavirus. Graham Adair continues to closely monitor global trends and policies for several countries across the globe, since this situation is ongoing, please note that information may change. Please do not hesitate to contact us for any information or with any concerns.