Immigration Updates for Employers: Travel Guidelines and I-9 Compliance in the Midst of COVID-19

Despite the increasing availability of vaccines, restrictions relating to the COVID-19 pandemic continue to affect travel to the United States. Regardless of vaccination status and with limited exceptions, all airline passengers arriving from abroad, including U.S. citizens and green card holders, must continue to show a negative result from a COVID-19 test that was taken within three days before boarding a flight to the U.S. This requirement is separate from the visa application process. Additionally, certain noncitizens will face suspended or limited entry, with exceptions, into the U.S. if they were physically present in China, Iran, the Schengen Area (most of Europe), the U.K., Ireland, Brazil, and South Africa during the 14-day period preceding their entry or attempted entry to the U.S.

Employers should be aware of the additional updates outlined further below:

• Travelers from the Schengen Area, the UK, and Ireland will also now face more restrictive criteria for obtaining a National Interest Exception (NIE) for these travel guidelines.
• The Department of Homeland Security (DHS) has further extended its suspension of physical inspection of I-9 documents until May 31, 2021.
• Noncitizens are once again able to apply for initial visas in certain H-1B, H-2B, L-1A, L-1B, and J-1 categories, as well as the related dependent categories.

Updated Eligibility for National Interest Exception for Most European Travel

The DHS updated eligibility for the NIE for travelers coming to the U.S. directly from the Schengen Area, the UK, and Ireland. Previously, the NIE applied to certain technical experts and specialists, senior-level managers and executives, treaty-traders and investors, professional athletes and their dependents; however, the U.S. Secretary of State rescinded that guidance for travelers from the Schengen Area, the UK, or Ireland.

Going forward, if a traveler arriving directly from the Schengen Area, the UK, or Ireland is not an academic, student, or journalist, the only way to qualify for the NIE is to show that the purpose of travel to the U.S. is to offer vital support to critical infrastructure sectors. Critical infrastructure sectors are specifically limited to the following industry sectors: chemical; commercial facilities; communications; critical manufacturing; dams; defense industrial base; emergency services; energy; financial services; food and agriculture; government facilities; healthcare and public health; information technology; nuclear reactors, materials, and waste; transportation; and water and wastewater systems.

The traveler must meet one of the following categories to seek the NIE on vital infrastructure grounds:

1. The travel is part of vital support of critical infrastructure sectors;
2. The travel is part of vital support of critical infrastructure-linked supply chain; or
3. The travel directly supports the creation or retention of U.S. jobs.

In addition to meeting one of the critical infrastructure categories above, travelers directly to the U.S. seeking the NIE must also show that their travel directly supports one of these criteria, and the traveler must show that their physical presence in the United States is critical to supporting the critical infrastructure itself. DHS is interpreting these criteria very narrowly, and the agency has indicated that NIE approvals will be rare. Travelers holding a National Interest Exception also remain subject to all applicable pre-departure testing requirements regardless of vaccination status.

I-9 Physical Distancing Flexibility Extended to May 31, 2021

Due to the continued need for social distancing and other pandemic-related precautions, the DHS announced this week that its policy to suspend the physical inspection requirements for I-9 verification will continue until May 31, 2021. Last year, the DHS deferred the physical inspection of Section 2 documents normally required of employers to execute Form I-9. This policy only applies to workforces that are operating remotely due to COVID-19, and temporarily exempts these employers from the usual I-9 requirement of physically inspecting an employee's identity documents. 

Expiration of H/J/L Nonimmigrant Proclamation

On March 31, 2021, Presidential Proclamation 10052, also known as the H/J/L Nonimmigrant Proclamation, expired. This proclamation suspended entry into the United States for applicants applying for initial visas in certain H-1B, H-2A, L-1A, L-1B, and J-1 categories, as well as the related dependent categories. As of April 1, applicants for initial visas in these categories, as well as the related dependent categories, may once again seek to enter the United States. Consular posts are resuming routine visa services on a post-by-post basis, following State Department guidance to safely return to Department facilities. Through December 31, 2021, the Department of State is extending the in-person interview waiver to nonimmigrant visa applicants whose previous nonimmigrant visas expired in the past 48 months to reduce the risk of COVID-19 transmission while resuming routine visa services.

We continue to monitor immigration process developments and will report on changes ongoing.

For more information on how these immigration travel and process updates may impact your operations and compliance obligations, please contact your local Quarles & Brady attorney or:

• Nneka Umeh : nneka.umeh@quarles.com / (312) 715-5124
• Grant Sovern : grant.sovern@quarles.com / (608) 283-2668