Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Update: On May 27, the U.S. Department of Homeland Security and U.S. Immigration and Customs Enforcement announced that the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification (due to COVID-19) -- which was set to expire on May 31, 2021 -- has been extended until August 31, 2021.
The Biden administration decided to let a highly publicized temporary worker visa ban expire on March 31, 2021. Proclamation 10052 of June 22, 2020 (“Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak”) had prohibited issuance of new temporary L-1 (intracompany transferee), H-1B (specialty occupation), H-2B (nonagricultural workers) and J-1 (trainee, au pair, intern) visas for individuals outside of the United States. These are some of the most popular employment-based visas for incoming professionals. The ban expired on March 31, 2021, and no extension has been issued.
The decision to let the visa ban expire comes after nearly a year of prohibitions on certain nonimmigrants entering the United States, subject to narrow exemptions for certain eligible individuals and medical workers, and a district court order requiring embassies to process applications for members of certain national plaintiff organizations. In March, several U.S. senators sent a letter to President Biden urging him to resume timely processing of new nonimmigrant visas in these affected categories. While this is good news for employers and prospective employees, we note that all COVID-19-related travel bans remain in effect and embassy closures of routine operations remain widespread, which will continue to be obstacles for visa processing in the short term.
On April 1, 2021, the Department of State (DOS) published brief guidance for impacted individuals who seek to travel on the previously affected nonimmigrant visas. The DOS has stated that visa applicants who were previously refused visas due to Presidential Proclamation 10052’s restrictions may reapply by submitting a new application including a new fee. This is in contrast to the previous policy for visas refused under the parallel immigrant ban, which allowed visas to be re-considered for issuance automatically. DOS states that those who have not yet been scheduled for an interview will have applications prioritized and processed in accordance with existing visa services guidance (which depends on post-specific conditions).
New ICE Extension of Remote I-9 Verification Guidelines
On March 31, 2021, U.S. Immigration and Customs Enforcement (ICE) announced another extension of flexible protocols for rules related to Form I-9 compliance that were initiated at the start of the COVID-19 pandemic. The guidance on flexible remote verification has been extended through May 31, 2021.
Specifically, the current extension includes guidance for “employees hired on or after April 1, 2021, and work[ing] exclusively in a remote setting due to COVID-19-related precautions.” Such employees are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) until they “undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.”
ICE confirms that this policy “only applies to employers and workplaces that are operating remotely.” If there are employees physically present at a work location, “no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification.” If newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, however, “DHS will evaluate this on a case-by-case basis.”