Coronavirus and immigration-related matters: Frequently asked questions

There have been more than 124,000 confirmed cases of the Coronavirus (COVID-19) worldwide, including 987 in the U.S. as of Wednesday, March 11, according to the World Health Organization, which officially declared the outbreak a pandemic in early March.

Below is some important information about the current and future impact of the Coronavirus on immigration-related matters in the United States.

President Donald Trump restricted travel to the U.S. from Europe in an attempt to contain the Coronavirus. What does this mean?

President Donald Trump announced on March 11 in an Oval Office address that he was restricting travel to the United States from more than 25 European countries in an attempt to contain the Coronavirus.

The ban, which took effect at 11:59 p.m. on March 13 and will last at least 30 days, applies to foreign nationals who have been in certain European countries during the 14 days prior to their scheduled arrival to the U.S.

The Department of Homeland Security (DHS) Acting Secretary said in a statement that the restrictions do not apply to American citizens who have been screened at select U.S. airports before entering the U.S. The restrictions will also not apply to Lawful Permanent Residents (LPR) of the U.S.; children and spouses of U.S. citizens or LPRs; or to parents and siblings of U.S. citizens or LPRs that are under 21, according to a Proclamation and DHS Statement issued shortly after the President addressed the nation from the Oval Office.

"(The Center for Disease Control and Prevention), along with State and local health departments, has limited resources, and the public health system could be overwhelmed if sustained human-to-human transmission of the virus occurred in the United States on a large scale," Trump said in the Proclamation. "Sustained human-to-human transmission has the potential to cause cascading public health, economic, national security, and societal consequences."

What specific European countries are impacted by the restrictions?

The Proclamation and travel suspension specifically impacts foreign nationals who have been physically present in the countries located in Europe's "Schengen Area," at any point during the 14 days prior to their scheduled arrival: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, The Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and Switzerland.

The United Kingdom is exempt from all restrictions in the Proclamation.

"Given the importance of protecting persons within the United States from the threat of this harmful communicable disease, I have determined that it is in the interests of the United States to take action to restrict and suspend the entry into the United States, as immigrants or nonimmigrants, of all aliens who were physically present within the Schengen Area during the 14-day period preceding their entry or attempted entry into the United States," Trump said in the Proclamation. "The free flow of commerce between the United States and the Schengen Area countries remains an economic priority for the United States, and I remain committed to facilitating trade between our nations."

The Trump administration had previously issued travel restrictions on foreign nationals who had visited China or Iran in the 14-day period before attempting to enter the United States.

How will colleges/universities switching to remote learning because of the Coronavirus outbreak impact those with student visas (F, M and J-1 visas)?

More than 80 colleges and universities throughout the country -- including Yale University, University of California Los Angeles, Georgetown University, the University of Florida, the University of North Carolina at Chapel Hill and the University of Virginia -- have already cancelled the remainder of the semester or switched to remote (online)-only classes, according to CNN.

Generally, foreign nationals studying in the United States on a nonimmigrant F visa are only allowed to take one online course per semester to maintain legal status, while students in the country on M visas (vocational and technical training) are prohibited from enrolling in any remote-only courses.

However, U.S. Immigration and Customs Enforcement's Student and Exchange Visitor Program (SEVP) said in a statement released in early March it "intends to be flexible with temporary adaptations" caused by the Coronavirus pandemic.

"SEVP recognizes that the COVID-19 crisis is fluid and rapidly changing. For that reason, SEVP is not requiring prior notice of procedural adaptations, leaving room for schools to comply with state or local health emergency declarations," the statement read, in part. "However, as noted in the Appendix, SEVP must be notified of procedural adaptations within ten business days of the change."

The organization's statement continued: "This guidance applies to students who are currently enrolled in a program of study and is not intended for new or initial students who are outside the United States. SEVP is monitoring this situation closely. The program will supplement this guidance with additional information and will adjust guidance as needed."

Students at U.S. colleges and universities on J-1 exchange visas should also be "shielded" from "penalties caused by the virus" after the Department of State, which oversees the program, issued its own guidance last month.

What about H-1B, L-1, TN, E-2, and O-1 employees? How, if at all, will working remotely from home (telecommuting) impact their work authorization?

Generally, L-1, TN, E-2 and O-1 employees may telecommute without requiring the employer to file an amended petition, as long as the employees are performing the same or similar job duties per their approved petitions. But different rules may apply for H-1B employees. As long as the H-1B employee is telecommuting within typical commuting distance of the approved work location per the H-1B petition and LCA, an amended petition nor a new LCA should be required. However, Garfinkel Immigration recommends posting a new Notice of LCA at the location where the employee is telecommuting. Again, the H-1B employee must be working in the same capacity while telecommuting and the employer must continue to pay its wage obligations to such employees.

If an H-1B employee will telecommute or work at a different location, which is not within normal commuting distance and/or is outside of the original worksite's Metropolitan Statistical Area (MSA), action may first be required by the employer. Employers should contact their Garfinkel Immigration attorney to discuss what, if any, action is required in this situation.

Also, Garfinkel Immigration would recommend employers maintain documentation of policies and instructions to employees regarding Coronavirus, in the event the telecommuting/worksite change must be explained in an audit or investigation.

How do furloughs impact H-1B, L-1, TN, E-2, and O-1 employees?

Furloughs may impact any of these employees' ability to maintain underlying nonimmigrant status, and employers should discuss such situations with their Garfinkel Immigration attorney in advance of implementation. Additionally, if an H-1B employee is specifically furloughed, the employer must continue to pay the employee the required wage rate per the LCA and approved petition. Employers may not place such employees on unpaid leave unless requested by the employee and consistent with the employer's general leave policies.

What will the impact be on nonimmigrant workers who are currently coming close to a max-out, expiration or denial?

A nonimmigrant employee and their employer should pay close attention to the 180-day unlawful presence rule and when it will apply for that specific individual. An alternate strategy and/or nonimmigrant visa could be an option, if a change of status petition can be filed prior to the expiration of one's period of authorized stay. The employee also may need to leave the U.S.

If an office is closed because of the Coronavirus, how should an employer secure and verify I-9 documentation from new or reverified employees?

In accordance with I-9 requirements, employees must provide documentation, in their original form, to their employers to prove their identity and authorization to work. Employers are obligated by law to physically examine such documentation in its original form and in person. It is not acceptable for an employer to examine or accept such documents if they are presented as copies, scans via e-mail and/or virtually through video conference. Employees and employers must make arrangements to present and examine the original documentation within the required timeframe. If necessary, it is acceptable for employers to contract with another person or business to verify the employees' identities and employment authorization and to complete the Form I-9 on behalf of the employer. However, the employer remains responsible for the contractor's actions and is liable for any violations.

Are there any other recommendations for clients?

Garfinkel Immigration Law Firm continues to monitor the situation closely. Our attorneys are actively identifying impacted cases and strategies and advising our clients accordingly.

Those whose status could be affected by the pandemic should consult with experienced immigration counsel to evaluate their options before making any decisions regarding the Coronavirus and immigration-based matters.

Make sure to sign up for the Firm's newsletter and client alerts and follow us on social media to receive the most up-to-date information.