Coronavirus’ Impact on Immigration in the Workplace

By: The Chander Law Firm, PC

The outbreak of Novel coronavirus (COVID-19) has impacted the global economy and transformed life in the workplace.  In an effort to keep employees healthy and prevent the spread of the disease, work related travel is being cancelled and employees are working from home.  The coronavirus creates added complications for foreign nationals working in the United States.  Restrictions may affect the ability for foreign nationals to travel for business or apply for work related visas.  Working from home may impact companies with employees on H-1B status.  This article will look at these issues in more detail.

What is Coronavirus

Coronaviruses are a group of viruses named for their appearance, which resemble a circle or sphere surrounded by a solar corona.  There are many strains of coronaviruses. Some strains cause symptoms of the common cold.  Other strains can cause severe respiratory tract infections.  The 2003 Severe Acute Respiratory Syndrome (SARS) and the 2012 Middle East Respiratory Syndrome (MERS) were both caused by coronaviruses.

The current coronavirus is called the Novel coronavirus, COVID-19, or SARS-CoV-2 (1).  The virus was first isolated in December 2019 when authorities in Wuhan, Hubei, China began monitoring a cluster of viral pneumonia cases.  Since then, the virus has spread to at least 95 countries, infected over 114,000, and killed more than 4,000.  The World Health Organization (WHO) states that around 1 out of every 6 people who gets COVID-19 becomes seriously ill and develops difficulty breathing.  The virus can be contracted by touching infected surfaces and then touching the eyes, nose, or mouth.  It can also be spread by breathing in droplets from an infected person who coughs or exhales.

In an effort to reduce the spread of the disease, China quarantined the entire city of Wuhan and certain travelers, impacting at least 50 million people.  Outbreaks have occurred Iran, Italy, and South Korea.  More than 700 cases have been reported in the United States and at least 20 have died. 

The coronavirus outbreak was declared a public health emergency of international concern by the WHO and a public health emergency by the U.S. Department of Health and Human Services.  The U.S. Centers for Disease Control (CDC) warns that widespread transmission of COVID-19 would affect the public health system, critical infrastructure, and other necessary services due to large numbers of people needing medical care at the same time.

Travel Restrictions due to Coronavirus

The spread of coronavirus has resulted in restrictions on domestic and international airline travel.  Airlines are directed to report travelers exhibiting specific symptoms including fever, persistent cough, difficulty breathing, or who obviously appear unwell. 

The CDC has implemented geographic risk assessments for countries affected by the coronavirus and provided corresponding travel notices.  This information is available at https://www.cdc.gov/coronavirus/2019-ncov/travelers/index.html .

The CDC has assigned Level 3 Travel Health Notices for the countries of China, Iran, South Korea, and Italy.  The Level 3 Warning for High Risk Countries recommends avoiding nonessential travel to those countries and a self-imposed home quarantine of 14 days after returning from those countries. 

Travel from China or Iran

Travelers who have spent time in China and Iran are subject to additional restrictions.  First, only U.S. citizens, lawful permanent residents, and certain family members will be allowed to enter the United States after travel to China or Iran within the last 14 days.  All flights arriving from China or Iran will be redirected to 11 airports designated as CDC quarantine stations.

Foreign nationals who have traveled to China or Iran within 14 days will be prohibited from traveling to the United States.  The restriction on foreign nationals traveling to the United States may be applied to other countries depending on the severity of the outbreak. 

Potential for Additional Country Restrictions

Companies employing foreign nationals who may need to travel abroad or to the United States should keep the potential government-imposed restrictions in mind before scheduling travel.  Check the CDC Geographic Risk Assessment.  Consider the possibility that coronavirus outbreak could spread to additional countries and consider travel restrictions between other countries.

Coronavirus is currently reported in every country in the EU.  France and Spain have confirmed over 1,600 cases each.  Germany has reported 1,200 cases. 

The Department of State has compiled a list of Country Specific COVID-19 Information.  https://travel.state.gov/content/travel/en/traveladvisories/COVID-19-Country-Specific-Information.html .  The list includes entry, exit, and quarantine requirements for individual countries. 

Some countries may have more stringent quarantine requirements than the United States.  For instance, Israel has implemented a mandatory 14 day home quarantine for all travelers.  Traveler are prohibited from self-quarantining in a hotel.  Additionally, Israel will deny entry to any non-resident who has traveled to China, Italy, South Korea, Thailand, Hong Kong, Singapore, Macau, Japan, France, Germany, Switzerland, Spain, Austria, San Marino, Andorra, or Egypt within 14 days.  Israel also bars travelers who have attended a gathering of more than 100 people or an international conference within 14 days.

As news regarding coronavirus infections is rapidly changing and restrictions on travel vary from country to country, due consideration should be taken before traveling internationally to attend conferences or attend business meetings.

Applying for Visas at U.S. Consulates Abroad

The complexities created by the coronavirus outbreak also affect those who must apply at U.S. consulates abroad to extend employment based visas.  For individuals holding E-2, TN, or Blanket L-1 status, it is common for foreign nationals to apply for extensions of visas at U.S. consulates in their home countries. 

With the uncertainty surrounding travel created by the coronavirus outbreak, trips outside of the United States to apply for visas may not be practical.  Employers with workers who need to extend employment based nonimmigrant status should consider applying for extension of stay with U.S. Citizenship and Immigration Service (USCIS).  For employment based nonimmigrant status, like the E-2, TN, or Blanket L-1, Form I-129 Petition for Nonimmigrant Worker would be submitted to USCIS with the applicable filing fees.  The petition must be received before the expiration of the foreign national’s nonimmigrant status.  The expiration of the foreign national’s status can be found on the I-94 form, which is online at https://i94.cbp.dhs.gov .

In certain circumstances when an extension of stay is timely filed, the foreign national may be permitted to continue employment with the employer for a period of 240 days until a decision is issued.

An extension of stay only extends the foreign national’s period of stay in the United States.  An extension of stay does not extend the foreign national’s visa, which is necessary to return to the United States after international travel.  This means that a foreign national who has been granted an extension of stay, but has an expired visa, cannot travel internationally and return to the United States without applying for a new visa at a U.S. consulate abroad.

Working from Home While Holding H-1B, H-1B1, or E-3 Status

The coronavirus outbreak has forced many workers to telecommute or work from home in order to keep healthy and limit spread of the disease.  In some cases, working from home may constitute a change in worksites requiring the employer to file additional documentation in order to comply with immigration regulations.

Employers with foreign national worker holding H-1B, H-1B1, or E-3 nonimmigrant status are required to define the worker’s place of employment with the Department of Labor through the Labor Condition Application (LCA).  In some cases, a change in worksites constitutes a material change in employment requiring the filing of an amended petition with USCIS.

A July 21, 2015 USCIS Policy Memorandum explained when an amended petition is not required after there is change in worksite.  Generally speaking, where an H-1B worker telecommutes from a home within the same area of intended employment as set out in the LCA, USCIS does not require the filing of an amended petition.  However, the employer may need to post LCA notices at the employer’s principal place of business or at the worksite updating the locations where the worker will be employed. 

Compliance with the worksite requirements affecting H-1B, H-1B1, and E-3 workers is complicated without the extenuating circumstance of coronavirus.  Companies should discuss worksite issues with immigration counsel.

The coronavirus outbreak’s impact will be immeasurable.  The duration and severity of outbreak has transformed many aspects of our economy and daily life, including how companies manage foreign national workers.  The disease may continue to spread in the coming months.  Companies should keep the coronavirus in mind when making decisions affecting foreign national workers.

Resources

CDC Coronavirus Disease 2019 (COVID-19) Travel Information https://www.cdc.gov/coronavirus/2019-ncov/travelers/index.html

CDC Coronavirus Disease 2019 (COVID-19) Travelers Returning from High Risk Countries https://www.cdc.gov/coronavirus/2019-ncov/travelers/after-travel-precautions.html

CDC Coronavirus Disease 2019 (COVID-19) Traveling from China https://www.cdc.gov/coronavirus/2019-ncov/travelers/from-other-countries.html

CDC Coronavirus Disease 2019 (COVID-19) Risk Assessment and Management https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html

CDC Coronavirus Disease 2019 (COVID-19) FAQ for Travelers https://www.cdc.gov/coronavirus/2019-ncov/travelers/faqs.html

Department of State, Current Outbreak of Coronavirus Disease 2019 https://travel.state.gov/content/travel/en/traveladvisories/ea/novel-coronavirus-hubei-province--china.html

Department of State, COVID-19 Country Specific Information https://travel.state.gov/content/travel/en/traveladvisories/COVID-19-Country-Specific-Information.html

New York Times, The Coronavirus: What Scientists Have Learned So Far https://www.nytimes.com/article/what-is-coronavirus.html

New York Times, How Bad Will the Coronavirus Outbreak Get? Here Are 6 Key Factors https://www.nytimes.com/interactive/2020/world/asia/china-coronavirus-contain.html

New York Times, Coronavirus Live Updates https://www.nytimes.com/2020/03/10/world/coronavirus-news.html

Science, The effect of travel restrictions on the spread of the 2019 novel coronavirus (COVID-19) outbreak https://science.sciencemag.org/content/early/2020/03/05/science.aba9757

World Health Organization Q&A on coronaviruses (COVID-19) https://www.who.int/news-room/q-a-detail/q-a-coronaviruses

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