Visa Issues Abound As Firms, Consulates Close For COVID-19

By Suzanne Monyak
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Law360 (March 16, 2020, 9:10 PM EDT) -- Companies can expect to see interruptions in visa processing as consulates abroad limit services and U.S. law firms close their doors to combat the spread of the new coronavirus, leaving people on temporary visas — and their employers — in limbo.

The spread of the novel coronavirus, which causes the disease COVID-19, has forced U.S. consulates around the world to cease regular visa services and instead focus on emergency services for American citizens, preventing some foreigners with expiring work visas from renewing abroad.

And while U.S. Citizenship and Immigration Services remains open, attorneys fear that the agency will soon also scale back operations, raising questions about whether filing deadlines, in-person signature requirements and other technical policies will be enforced

"There are just so many things in immigration law that are so strict and unforgiving about paperwork that we don't know yet how it will all be fixed on the back end," said Loren Locke, an immigration lawyer at Ford Harrison and former consular officer. "There are going to be a lot of people who need fixing."

Trapped Abroad

When President Donald Trump suspended travel from China, Iran, the U.K., Ireland and the 26 European countries that comprise the Schengen free travel zone — with U.S. citizens and green card holders exempted — some people on nonimmigrant visas found themselves stuck abroad.

Under the proclamation, foreigners who spent any time in the past two weeks in one of those countries are generally barred from travelling to the U.S. On a media call Saturday, a senior U.S. Department of Homeland Security official — who held the call on the condition of anonymity — said people who live, work or study in the U.S. on nonimmigrant visas are subject to the restrictions, but could spend two weeks in another country and then return to the U.S.

But that's not an option for everyone, particularly if an individual's country of citizenship is also included in the ban, limiting which other countries they could visit for two weeks. Locke said she has a Chinese client who had planned to spend two weeks in the Netherlands, but those plans were foiled when the country was added to the ban.

And with Canada and other countries closing their borders to foreigners, employees on temporary U.S. visas caught abroad at the time of the ban could struggle to find a third country to visit for two weeks if their home country isn't an option, keeping them away from their families and their jobs in the U.S.

U.S. consulates across Europe and China are also scaling back, leaving some foreigners with jobs or offers in the U.S. in a lurch if they traveled abroad to attend a visa interview but had the office close before their visa was in hand.

Leslie Ditrani, managing partner at Boston-based business immigration firm Chin & Curtis LLP, said an attorney at the firm had a client get a visa approved, but the consular office in London closed before they could get the necessary stamp.

Angelo Paparelli, a partner at Seyfarth Shaw LLP, said he had a client in a similar situation who managed to pick up the approved visa on Sunday afternoon before the local consular office closed Monday.

"There are a lot of emergency scenarios like that that immigration practitioners are dealing with this week and last week," said Locke, who had a client on an O-1 visa for people with extraordinary abilities get stuck in the U.K.

Staying in Status

People already in the U.S. with approved visas may not be safe either, as attorneys question how visa petitions and renewals will be signed, submitted and processed once their status expires.

Individuals visiting the U.S. on tourist visas may find themselves in a tough spot — and risk steep immigration penalties for overstaying a visa — if they can't return home as planned, either because their home country is on lockdown or they have coronavirus or were exposed to the virus and ordered to quarantine.

Those individuals can request a 30-day extension for extraordinary circumstances, but given current estimates of the virus' spread, 30 days may not be enough, Paparelli said.

Foreign workers in the U.S. must also be careful to stay in compliance with visa rules, even when their companies mandate remote work in light of government guidance. Companies with employees on H-1B specialty occupation visas who live more than 50 miles from their workplaces must request a new labor condition application with the employee's new locations, such as their home address, for instance. 

If it's approved, the new LCA must be posted in the employee's new workplace, even if it's their living room, attorneys said.

Ditrani said she would advise any client to follow the law and request the new LCA. But with the government requesting extra evidence for nearly half of H-1B petitions in the first quarter of fiscal year 2020, subjecting an immigration request to new scrutiny can carry its own risks.

"Someone might be trying to do the right thing by posting because it's more than 50 miles and then amending, and then find themselves with [a Request for Evidence] or even a denial," she said.

Disruptions in workplace functions, as offices and schools close and working parents assume childcare responsibilities, could also make it difficult for employers and immigrants to meet filing deadlines and remember administrative requirements.

"If someone is concerned about their health and being quarantined, it's hard to wrap your head around the complex and nuanced rules regarding immigration status," Ditrani said.

And as consulates close, people working in the U.S. on temporary nonimmigrant visas could be forced to renew their status from within the U.S., rather than at a consulate abroad or at the border, which would require USCIS to process more petitions and could create delays, attorneys said.

"It's been cheaper, faster and with less pushback from the government to actually travel and get a new visa, come in with that, rather than get an extension of status from inside the U.S.," said Locke, noting that USCIS has ramped up scrutiny of employment-based immigration requests under the Trump administration.

But with consular offices closing, and travel becoming riskier as governments impose entry restrictions and urge people to stay home to mitigate the virus' spread, "the calculus has completely changed," Locke said.

Ditrani agreed, saying companies petitioning to move existing employees from foreign offices to the U.S. have generally preferred to go through the consulates, which are run by the U.S. Department of State. "That's now not an option for a lot of people," she said.

She predicted that processing times for companies that don't pay for premium processing will increase as more people apply to file from within the U.S.

She also worried that nonimmigrant workers, such as those on the TN visa for Mexican and Canadian professionals and the E treaty visas, may see their work authorization expire before USCIS processes their extension, even with the automatic 240-day extension of work status that's triggered when the request to extend is filed.

"We all need to start thinking that if USCIS starts really slowing down, 240 days might not be enough time," Ditrani said.

The timing of the virus, which the World Health Organization has labeled a pandemic, also coincides with one of the busiest seasons for business immigration lawyers and for USCIS, which is currently accepting employers' requests for H-1B visas in its first-ever electronic system and preparing to run the lottery later this month.

USCIS is open and the H-1B lottery is still scheduled, even as immigration courts postpone certain crowded preliminary scheduling hearings.

But if USCIS closes or limits operations, people could be unable to renew or extend their work status from within the U.S. too, leaving them without permission to work, unless the agency makes exceptions. This would force businesses to lose their existing foreign workers, all while being unable to hire new ones abroad.

"We rely on our foreign workers," Ditrani said. "If we've got months and months of not bringing in the talent they need — these are critical people — this is going to be difficult for companies."

'The Rules are the Rules'

Attorneys also warned that many of the government's more technical immigration rules aren't compatible with public health recommendations.

"A lot of people have the feeling, 'Of course they'll understand,'" Ditrani said. "Unfortunately, the rules are the rules."

While many professionals have transitioned to working from home, the U.S. immigration system largely isn't online, with petitions being mailed and signatures required to be original.

For example, I-129 forms to request a nonimmigrant status, I-539 forms to request an extension of nonimmigrant status and I-131 forms to request permission to travel all require an original "wet ink" signature, not an electronic or scanned one.

Employers or company representatives must also have some face-to-face interaction with a new hire to verify their identity under I-9 compliance rules, which govern how companies verify workers' employment eligibility.

"We're particularly poorly situated for a knee-jerk transition to digital. We're just not ready at all," said Locke.

Attorneys warned that it could be dangerous for immigration attorneys and employers to satisfy these rules, particularly as the Centers for Disease Control and Prevention recommends minimizing contact with others. It could also be logistically difficult to obtain original signatures and mail petitions, or receive filings in the mail, as law firms themselves close.

"It's essentially impossible in those situations to comply with public health orders and comply with the I-9," Paparelli said.

Paparelli said he has a client who has decided to risk a civil fine and use video conferencing instead, in hopes that USCIS announces that this is an acceptable alternative to a face-to-face meeting.

While USCIS closed its Albany, New York, field office on Monday and has encouraged people to reschedule their appointments if they have recently traveled internationally, have been exposed to someone with coronavirus or are experiencing flu-like symptoms, the agency has yet to issue clear guidance clarifying what requirements, if any, will be forgiven. 

Attorneys called on USCIS to issue guidance waiving in-person requirements and filing deadlines for immigrants whose statuses are expiring soon. They also asked the agency to state that tourists and other temporary workers who can't leave the U.S. on time for coronavirus-related reasons won't be penalized.

A representative for the agency didn't respond to requests for comment on Monday.

U.S. Immigration and Customs Enforcement's Student and Exchange Visitor Program has issued a memo relaxing requirements for student visa holders, who are generally not allowed to take more than one course online per semester, as universities move classes online.

Paparelli called on the government to administratively toll, or postpone, deadlines to extend people's visa status until the agency can process requests, as it did in the wake of September 11, 2001, when the government automatically extended the legal status of people on temporary visas if they were affected by the terrorist attacks.

"Strict compliance endangers lives," he said.

--Editing by Kelly Duncan and Emily Kokoll.

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