Work in the Time of COVID-19: FAQs for Employers

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Background to Latest Presidential Proclamation

In Proclamation 10014 of April 22, 2020 (Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak), the President suspended, for a period of 60 days, the entry of aliens as permanent US residents subject to certain exceptions.

To remind, that Proclamation only applied to aliens who were outside the United States on the effective date of the proclamation; did not have an immigrant visa that is valid on the effective date of the proclamation; and did not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) valid on the effective date of the proclamation or issued on any date thereafter permitting entry into the United States.

The Proclamation did not and the latest Proclamation discussed below still does not apply to any permanent US resident, known as a green card holder; any alien seeking to enter the United States on an immigrant visa as a physician, nurse, or other healthcare professional; any alien seeking entry to perform medical research or other research intended to combat the spread of COVID-19 or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak; and any spouse and unmarried children under 21 years old of any such alien who are accompanying or following to join the alien.

Also exempted was any alien applying for a visa to enter the US pursuant to the EB-5 Immigrant Investor Program; any alien who is the spouse of a US citizen; any alien who is under 21 years old and is the child of a US citizen, or who is a prospective adoptee seeking to enter the US pursuant to the IR-4 or IH-4 visa classifications; any alien whose entry would further important US law enforcement objectives; any member of the US Armed Forces and any spouse and children of such a member of the US Armed Forces; any alien seeking to enter the US pursuant to a Special Immigrant Visa in the SI or SQ classification, subject to such conditions as the Secretary of State may impose, and any spouse and children of any such individual; and any alien whose entry would be in the national interest.

New Proclamation

Effective June 24, 2020, the above Proclamation 10014 has been extended until December 31, 2020, and additional restrictions targeting nonimmigrant foreign workers seeking to enter the US have been added.  They include:

The suspension and limitation on entry only applies to individuals who are outside the United States on the effective date of this Proclamation; do not already have a nonimmigrant visa or official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of the Proclamation or issued on any date thereafter that permits admission to the United States. To clarify further: this proclamation does not withhold entry of all individuals who hold those nonimmigrant visas or close the US borders to perspective visa holders. It applies to individuals who need to apply for a non-immigrant visa outside the US and then travel into the US.

Exemptions

This suspension and limitation on entry also do not apply to any lawful permanent resident (green card holder) of the United States; any alien who is the spouse or child of a US citizen; any alien seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and any alien whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security or their respective designees. These officials, in addition to the Secretary of Labor, can establish prospectively other exemptions that they consider critical to the defense, law enforcement, diplomacy, or national security of the country; are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized; are involved with the provision of medical research at US facilities to help combat COVID-19; or are necessary to facilitate the immediate and continued economic recovery of the United States.

Also exempt are alien children who, as a result of the suspension, would otherwise age out of eligibility for a visa.

The Proclamations also do not apply to applicants applying for asylum, refugee status, withholding of removal, or protection under the Convention Against Torture. These individuals are eligible to obtain Employment Authorization Documents (EADs) and can continue to work.

Note for Employers with H-1B Visa Employees

There is a warning to employers of H-1B visa holders within the latest Proclamation which adds that, as soon as practicable, and consistent with applicable law, the administration will “consider” promulgating regulations or take other appropriate action regarding the efficient allocation of visas and thus ensuring “that the presence in the US of H-1B nonimmigrants does not disadvantage United States workers”. This statement could be interpreted to indicate that H-1B visa holders working in the US might not be excluded from future restrictions.

US Supreme Court’s DACA Decision

Under the Obama program, qualified individuals brought to the US as children were given temporary legal status if they had graduated from high school, had passed the GRE or were honorably discharged from the military, and passed a background check.  This is known as DACA, the acronym for Deferred Action for Childhood Arrivals. The Trump Administration attempted to revoke the program only to be blocked by lower courts.

On June 18, 2020, the Supreme Court also refused to end DACA, couching its reason on one of procedure:  Chief Justice Roberts wrote: “We do not decide whether DACA or its rescission are sound policies. The wisdom of those decisions is none of our concern. Here we address only whether the [Trump] Administration complied with the procedural requirements in the law that insist on ‘a reasoned explanation for its action.’ ” Thus, for the time being, for the 1.2 million DACA-eligible individuals, 94.1% of whom are employed and 45,466 of whom are entrepreneurs, this is a welcome reprieve.  A DACA recipient can apply for, obtain and present an EAD as part of the Form I-9 process when hired.  The EAD is issued in one year increments.  Thus, the DACA recipient must pro-actively apply for EAD extensions well in advance of the EAD’s expiration.  Because of a delay in producing EADs — currently due to insufficient funding — US Citizenship and Immigration Services has advised that an expired EAD, accompanied by a timely filed extension receipt dated before the EAD’s expiration, will entitle the worker to continue to be employed for an additional 180 days beyond the expiration date of the EAD.

One Last Thing

There is one final development which initially appeared to affect an employee who is a student on an F-1 visa, working while studying, either as part of an approved Curricular Practical Training program or because of severe economic hardship.  In either event, that employee would have applied for and obtained an EAD in order to work.  A rule announced on 07/06/2020 attempted to revoke F-1 visa status and require immediate departure if the student would not be attending at least one in-person class.   This rule was successfully challenged by MIT and Harvard with others joining, and was walked back by the Trump Administration on 07/14/2020. Thus, a student’s F-1 visa status with concomitant employment is authorized even if all classes are online.

Summary

While L-1 visa holders, H-1B, H-2B and J visa holders can continue to work in the US, there may be future restrictions specifically placed upon hiring or continuing to employ H-1B workers already present in the US.  It is prudent for these visa holders not to leave the US at this time.  DACA recipients are “safe” for the time being as are F-1 student visa holders whose instruction format is completely online.  E-1/E-2 (treaty trader/treaty investor), TN, E-3 and O-1 visas have not been affected by the last two Proclamations.

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