Immigration and Form I-9 Compliance in the Midst of COVID-19

DHS Announces Flexibility in Requirements Related to Form I-9 Compliance

In light of social distancing practices and precautions implemented by employers in response to COVID-19, the Department of Homeland Security ("DHS") announced today that it will defer the physical presence requirements normally needed when executing Form I-9.

Employers taking physical proximity precautions due to COVID-19 will temporarily not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. Normally employers must see the physical documents in the presence of the new employee. This provision only applies to employers and workplaces that are operating remotely. Under these circumstances, employers should use the following protocol:

1. Employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents within three business days for purposes of completing Section 2.
2. Employers also should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 "Additional Information" field once physical inspection takes place after normal operations resume.
3. Once normal operations resume, all employees who were on-boarded using remote verification must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9, "Employment Eligibility Verification."
4. Once the documents have been physically inspected, the employer should add “Documents physically examined” with the date of inspection to the Section 2 Additional Information field on the Form I-9, or to Section 3 as appropriate.
5. Employers should also document their remote onboarding and telework policies for each employee so personnel files are complete and documented.

These provisions may be implemented by employers until May 19, 2020 or within 3 business days after the termination of the National Emergency, whichever comes first.

Please note, employers may designate an authorized representative to act on their behalf to complete Section 2. An authorized representative may be any person the employer designates to complete and sign Form I-9 on their behalf. We highly recommend this be someone who knows the I-9 process.

Continued International Travel Restrictions

Due to increasing restrictions on travel into the United States, we strongly recommend you advise your employees (both U.S. citizens and foreign nationals) to travel internationally only in emergency situations. If traveling, the company should devise a back-up plan in the event the employee is unable to immediately return to the U.S. as planned.

North American Travel Ban

The U.S. borders with Canada and Mexico will be closed to nonessential travel for at least 30 days beginning at midnight on Saturday, March 21. A ban on travel between the U.S. and Canada was already set to go into effect on March 20. Details of what will be deemed “essential” travel have not yet been released.

European Travel Ban

By Presidential Proclamation, the U.S. has suspended and limited the entry into the United States of foreign nationals who have been physically present within the Schengen Area (most of Western Europe) as well as the United Kingdom (including Ireland) within 14 days before attempting to enter the United States. This suspension does not apply to U.S. citizens, any lawful permanent resident of the United States, and some additional exceptions.

This does not mean that citizens of those countries may not come to the U.S. It means any person who has physically been in those countries in the 14 days before entering the U.S. may not enter the U.S. until they have spent 14 days outside of those countries. For example, a citizen of India who is currently in France may not enter the U.S. until she has been out of France for 14 days. A citizen of France who has been in India for the past 14 days may enter the U.S. if he does not transit through Europe (or Canada or Mexico).

For purposes of these proclamations, the Schengen Area comprises 26 European states: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

Immigration Service Temporarily Suspends Premium Processing for Most Visa and Green Card Petitions

On Friday, March 20, 2020, the U.S. Citizenship & Immigration Services ("USCIS") announced the immediate and temporary suspension of premium processing for all I-129 and I-140 Petitions due to the Coronavirus Pandemic until further notice. Premium Processing is an expedited filing service offered by USCIS for an additional fee of $1,440 for certain filings guaranteeing a response within 15 calendar days. Almost all employment-based visa petitions are filed on I-129 Petitions, and I-140 Petitions are used for all employment-based permanent resident (green card) filings.

USCIS will reject the I-907 and return the $1,440 filing fee for all petitions requesting premium processing that were mailed before March 20 but not yet accepted. The actual immigration petition should still be accepted for normal processing in this case. This temporary suspension includes petitions filed for the following categories:

• I-129 petitions: E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-1 and TN-2.
• I-140 petitions: EB-1, EB-2 and EB-3.

USCIS previously announced the temporary suspension of premium processing for FY 2021 cap-subject H-1B petitions and tentative dates for resumption of premium processing service (end of May for those in the U.S. and end of June for those outside). This announcement expands upon and supersedes the previous announcement.

For more information on how the COVID-19 pandemic is yielding new U.S. Immigration compliance guidelines and procedures that may impact employers, please contact your local Quarles & Brady attorney or

• Emily Shircel: (414) 277-5217 / emily.shircel@quarles.com
• Grant Sovern: (608) 283-2668 / grant.sovern@quarles.com