On April 10, 2020, the president issued a new memorandum, Memorandum on Visa Sanctions, focused on immigration compliance measures and enforcement. This new memorandum instructs the secretary of homeland security to notify the secretary of state if any government of a foreign country “denies or unreasonably delays the acceptance of aliens who are citizens, subjects, nationals, or residents of that country after being asked to accept those aliens, and if such denial or delay is impeding operations of the Department of Homeland Security necessary to respond to the ongoing pandemic caused by SARS-CoV-2.” This is relevant as many countries have closed their borders completely, barring even their own citizens from returning at the moment.

Pursuant to the memorandum, once notified of the unreasonable delay in repatriation, the secretary of state must adopt and initiate a plan to impose visa sanctions within seven days. The memorandum cites to the Immigration and Nationality Act (INA) § 243(d), 8 U.S.C. § 1253(d), which provides the regulatory authority for “discontinuance” of visa issuance as a penalty for countries that refuse to take back their “citizens, subjects, nationals, and residents” who have been ordered deported from the United States.¹ The new memorandum adds that sanctions will “cease to apply once the foreign country has resumed accepting its citizens, subjects, nationals, or residents when asked to accept those aliens, without unreasonable delay.”

Historically, visa discontinuation orders under INA § 243(d) have been tailored to individual countries.² Generally, once a potential sanction under INA § 243(d) is lifted, consular officers within the affected post must complete adjudication of any visa applications submitted during the sanctions period, consistent with regulations and Department of State guidance, such as the Foreign Affairs Manual.³  In this case, the memorandum does not yet name any specific countries or any specific restrictions.

The new memorandum addresses the ongoing national public health crisis and goes on to explain, “[c]ountries that deny or unreasonably delay the acceptance of their citizens, subjects, nationals, or residents from the United States during the ongoing pandemic caused by SARS-CoV-2 create unacceptable public health risks for Americans.” The memorandum states that “[t]he United States must be able to effectuate the repatriation of foreign nationals who violate the laws of the United States.” The language appears to target individuals who might overstay the terms of their admission or who may have entered the United States unlawfully during the pandemic. The memorandum “shall cease to apply on December 31, 2020, unless extended.”

Extensions of Nonimmigrant Status

Thus far, USCIS has not relaxed deadlines for extension of status and change of status petitions for nonimmigrants in the United States with upcoming status deadlines, despite unprecedented business disruptions imposed by COVID-19-related closures. USCIS “continues to accept and process applications and petitions, and many of [its] forms are available for online filing.” Under current regulations, if an emergency (such as COVID-19) prevents the departure of a Visa Waiver Program entrant, “USCIS in its discretion may grant up to 30 days to allow for satisfactory departure.”⁴ USCIS also “may excuse a nonimmigrant’s failure to timely file an extension/change of status request if the delay was due to extraordinary circumstances,” but USCIS encourages individuals to “mitigate immigration consequences by timely filing an extension of stay or change in status application and petition.” Note that this guidance is generally consistent with USCIS’s current policy and does not afford additional benefits/exceptions to expiration of status.

Premium Processing is Paused

As of March 20, 2020, USCIS also stopped accepting new requests for Premium Processing (requiring a decision within 15 days of filing) on Form I-129 and Form I-140, which will lead to longer processing times for employment-based immigrant and nonimmigrant petitions. Employers should be aware that the increased adjudication time may require earlier filings in some cases – for example, in cases of employees in need of an approved I-140 immigrant petition in order to become eligible to apply for future extensions of status beyond the typical six-year H-1B visa limit.

Next Steps

While the situation remains fluid and potentially subject to change, employers can take the following proactive steps:

• Maintain close awareness of nonimmigrant employees with upcoming status expiration.

• Take advantage of decreased technical barriers to filing, such as USCIS’s allowed use of reproducible signatures on immigration forms, to ensure stability of maintenance of status for applicable employees for any needed extensions.

• Consider filing well in advance of previously planned timelines to account for expected lags in current processing time for both immigrant and nonimmigrant visas.

• Formulate a plan to address any interim status needs or to facilitate the return of foreign nationals working on nonimmigrant visas due to expire during the pandemic in order to ensure compliance with the terms and conditions of employees’ status in the United States.

• Note that if a foreign national employee’s status is expiring but the individual cannot return to their home country, the individual may be able to file a change of status to B-1/B-2 while awaiting the reopening of borders.