U.S. Immigration Considerations for Colleges and Universities During the COVID-19 Crisis

This blog was contributed by Aaron Blumberg and Patrick Shen of Fragomen Government Strategies and Compliance Group.

The COVID-19 public health crisis has compelled the United States and many countries to implement travel restrictions and quarantines. This raises severe immigration-related operational and regulatory compliance concerns, especially for colleges and universities who have highly diverse international faculty and students.

Maintaining Valid Visa Status During the Pandemic

Despite the COVID-19 crisis, most institutions are continuing to operate, albeit remotely, and recruiting new faculty members for the fall semester. Currently, U.S. Citizenship and Immigration Services (USCIS), a Department of Homeland Security (DHS) agency responsible for adjudicating immigration applications, has closed its doors to much of the public but is adjudicating applications at its service centers. Some immigration procedural requirements have been relaxed — USCIS is granting an additional 60 days to respond to requests for further evidence and notices of intent to deny issued between March 1 and May 1, 2020 in some pending visa petitions, and scanned signatures are now being accepted in place of ink signatures.

On the other hand, many obstacles remain, and employers must ensure compliance even under difficult circumstances. USCIS has provided no accommodation for those whose authorized period to stay in the U.S. is expiring but who cannot repatriate because of worldwide travel restrictions. Consequently, employers must continue to file extensions of stay and even change the visa categories of their employees in order to keep current employees in legal status until it is safe to depart. As a reminder, some temporary visa holders may continue working legally for up to 240 days if an extension was requested before expiration of the previous authorization. Certain categories of temporary employment authorization cards are also eligible for an automatic 180-day extension if a renewal was requested prior to the expiration of the previous card.

Another procedural obstacle is the suspension of premium processing, which would provide a 15-day expedited review for an additional fee for certain temporary and permanent visa petitions generally reserved for highly educated professionals. Now, employers have to present “compelling government interests” or “urgent humanitarian concerns” to request a case-by-case expedited review. Based on these criteria, individuals working in essential services in higher education, such as the medical field, should have better success getting applications expedited. Likewise, the State Department is prioritizing foreign medical professionals coming to the U.S. to help fight the pandemic.

Similarly, the Labor Department is allowing flexibility in some areas but not others. For example, employers seeking a green card for a foreign national have an additional 60 days beyond the normal 180-day window to apply for labor certification after commencing a market test for eligible U.S. workers. However, there is no accommodation for those in teaching positions whose application window is already 18 months long. The requirements related to the labor condition application for the commonly used H-1B visa also remains murky. While regulations require the labor condition application to be posted at the job site for all interested parties to inspect, there is no definitive guidance from the department as to where to post when the H-1B employee is working from home.

For the foreign students who are subject to monitoring through the DHS’s Student and Exchange Visitor Program, full-time online course load and remote work locations are now permitted. However, new graduates working to pursue “optional practical training” still are not permitted to be unemployed for more than 90 days, which creates a dilemma if the job prospects in the U.S. are bleak but they cannot go home because of travel restrictions.

Complying With Form I-9 Requirements in a Virtual Environment

Employers are still required to follow the Form I-9 employment eligibility verification requirements, but as schools have moved to virtual classes and directed faculty and staff to work from home, it is not feasible to examine original documents in person, which employers must do within three business days of hire for new employees and prior to expiration of the previous authorized period for current employees.

The DHS’s March 20, 2020, guidance allows document examination “over video link, fax or email” for 60 days or until three days after the national emergency is over, whichever occurs first. This interim policy “only applies to employers and workplaces that are operating remotely” and does not apply “[i]f there are employees physically present at a work location[.]” Alternatively, the DHS will determine case by case Form I-9 compliance for individual employees subject to COVID-19 quarantine or lockdown protocols. When normal operations resume, employers must examine the original documents and update the Form I-9.

While this interim policy may bring some welcomed relief, each institution must assess the risks associated with their specific circumstances. The DHS has not indicated how it will determine eligibility for the interim guidance case by case, or what happens if a small staff is left on campus for business continuity. Furthermore, employers must consider the follow-up requirements when the crisis is over and the liability of not following up correctly. Because of this uncertainty, U.S. employers should consider using third-party agents, which may be a member of the same household, as an option to complete the Form I-9. Many schools already have such a protocol because they hire faculty and researchers in remote locations.

Planning Ahead

These issue and developments are of great interest to colleges and universities, but certainly do not represent all the U.S. immigration considerations during the COVID-19 crisis. Employers in higher education should work with legal counsel to assess risks and ensure immigration compliance in the current uncertain environment. They should also plan ahead for obstacles to onboarding critical foreign faculty and staff by the fall semester and have contingency plans in place in case onboarding is not possible.