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COVID-19: July 2020 Immigration Update

By Tsveta Boeva

In response to the COVID-19 pandemic, the U.S. administration has been implementing various changes affecting travel into the U.S. and the application process for immigrant and several non-immigrant visas. To help you make informed decisions concerning international travel and visa applications, we will summarize the current status of some of those changes, that may be relevant to you.

1.            Suspension of entry in the U.S. from the Schengen area, United Kingdom, Ireland, China, Iran, and Brazil

The suspension of entry in the U.S. of foreign nationals, who have been physically present within the Schengen area, United Kingdom, Ireland, China, Iran, and Brazil for a period of 14 days prior to their attempted arrival in the U.S., remains in effect. 

The following individuals are exempt from the suspension:

•             U.S. citizens.

•             Permanent residents.

•             Spouses, parents, legal guardians, siblings, children, wards, prospective adoptees of U.S. citizens or permanent residents, subject to certain conditions.

•             Anyone who travels at the invitation of the U.S. government for the purpose of containing and mitigating the virus.

•             Holders of C-1, D, or C-1/D visas as crewmembers or anyone who travels to the U.S. as air or sea crew.

•             Diplomats, foreign officials, employees of international organizations, and their immediate family members or anyone whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement.

•             Holders of E-1 visas, working as employees of Taipei Economic and Cultural Representative Office, and the immediate family members of those employees.

•             Anyone whose entry would not pose a significant risk of transmitting the virus, as determined by the U.S. Secretary of Health and Human Services.

•             Anyone whose entry would further important U.S. law enforcement objectives.

•             Anyone whose entry would be in the U.S. national interest.

•             Members of U.S. Armed Forces and their spouses and children.

Travelers who are exempt from the ban, will be able to enter the U.S. only through 15 designated airports.

2.            Travel restrictions applying to individuals traveling from Mexico and Canada

The restriction of non-essential travel applying to individuals traveling from Mexico and Canada through the U.S. land ports of entry and ferry terminals has been extended 3 times and is currently in effect until July 21, 2020. 

Essential travel includes, but it is not limited to:

•             U.S. citizens and lawful permanent residents returning to U.S.

•             Traveling for medical purposes.

•             Traveling to attend educational institutions. 

•             Traveling to work (e.g., individuals working in the farming or agriculture industry).

•             Traveling for emergency response and public health purposes.

•             Lawful cross-border trade (e.g., truck drivers supporting the movement of cargo).

•             Official government travel or diplomatic travel.

•             Members of the U.S. Armed Forces, and the spouses and children of members of the U.S. Armed Forces, returning to the United States.

•             Traveling to engage in military-related travel or operations.

3.            Suspension of routine visa services at U.S. Embassies

All routine visa services at U.S. Embassies are suspended, except for emergency and mission critical visa services and services to U.S. citizens. The suspension is still in effect. This does not affect the Visa Waiver program. 

4.            Suspension of immigrant visa applications

Foreign nationals, who are outside of the U.S., cannot apply for immigrant visas until December 31, 2020, even if Embassies resume visa services before December 31, 2020. 

The following individuals  are not affected by the suspension and will be able to apply for an immigrant visa when Embassies resume services: 

•             Applicants who seek to enter the U.S. on an immigrant visa based on employment as a physician, nurse, other healthcare professional; 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 COVID-19 outbreak; and the spouses and children of those applicants.

•             Applicants of an immigrant visa pursuant to the EB-5 investor program.

•             Spouses, children, or prospective adoptees of U.S. citizens.

•             Anyone whose entry would further important U.S. law enforcement objectives.

•             Any member of the U.S. Armed Forces and their spouses and children.

•             Applicants who seek to enter the U.S. pursuant to a Special Immigrant Visa for Iraqi and Afghan nationals to work for or on behalf of the U.S. government or to work as translators or interpreters for the U.S. military, their spouses and children.

•             Anyone whose entry would be in the U.S. national interest.

Since the suspension applies to individuals who are outside of the U.S., it does not affect foreign nationals who are in the U.S. and wish to apply for adjustment of status (green card application submitted at the U.S. Citizenship and Immigration Services while physically present in the U.S.). 

Additionally, permanent residents and holders of a valid immigrant visa or an official travel document (such as a transportation letter, an appropriate boarding foil, or an advance parole) will be able to travel to the U.S.

5.            Suspension of L, H, and J visa applications

Foreign nationals, who are outside of the U.S., cannot apply for L-1, L-2 (spouses and children of L-1 visa holders), H-1B, H-2B, H-4 (spouses and children of H-1B or H-2B visa holders), J-1, and J-2 (spouses and children of L-1 visa holders) visas until December 31, 2020, even if Embassies resume visa services before December 31, 2020. 

Individuals, who are not affected by the suspension and will be able to apply for an L-1, H-1B, H-2B, H-4, J-1, or J-2 visa when Embassies resume operations are as follows: 

•             Spouses and children of U.S. citizens.

•             Individuals seeking entry to provide temporary labor or services essential to the U.S. food supply chain.

•             Anyone whose entry would be in the U.S. national interest.

Holders of valid L-1, H-1B, H-2B, H-4, J-1, or J-2 visas will be able to travel to the U.S.

Further, since the suspension applies to foreign nationals who are outside of the U.S., holders of L-1, H-1B, H-2B, H-4, J-1, or J-2 status, who are in the U.S., will be able to remain in the U.S. under  their current status. They will be able to apply for extension of their status, without having to leave the U.S. If, however, they leave the U.S. and their visa has expired, they will not be able to apply for a new visa in order to return to the U.S. In that case, if they are eligible to apply for a different visa type, for example a B-2 tourist visa, they will be able to return to the U.S., but will be admitted under B-2 status. 

In summary, the suspension bars entry in the U.S. in L-1, H-1B, H-2B, H-4, J-1, or J-2 status only to those foreign nationals, who are outside of the U.S. and do not have a valid L-1, H-1B, H-2B, H-4, J-1, or J-2 visa.

SBA programs under the Coronavirus Aid, Relief, and Economic Security (CARES) Act

By Andrea Budano and Natalia Curto

The Coronavirus Aid, Relief, and Economic Security (CARES) Act is arguably the largest economic relief bill in recent U.S. history, allocating $2.2 trillion to individuals and businesses affected by COVID-19. The CARES Act programs specifically addressing small businesses are the SBA 7(a) Paycheck Protection Program (“PPP”) and the SBA Economic Injury Disaster Loan (“EIDL”) grant allocating more than $360 billion to small business owners and entrepreneurs through the Small Business Administration.  

Please find below a short guide to these SBA managed financial aids.

The Paycheck Protection Program 

The Paycheck Protection Program (“PPP”) provides 100% federally guaranteed loans and forgivable loans to small businesses to pay their employees during the COVID-19 crisis.

Who is eligible?

  • Small business with fewer than 500 employees (full-time, part-time, and any other status);
  • Small business that otherwise meets the SBA’s size standards;
  • Sole proprietors, independent contractor, self-employed individuals who regularly carry on any trade or business ;
  • Tribal business concern that meets the SBA size standard; 
  • A 501(c)(19) Veterans Organization that meets the SBA size standard.

To qualify an applicant must have been in operation on February 15, 2020 and have been paying employees at that time.

What kind of aid is available?

Loans which can be up to 2.5 x the borrower’s average monthly payroll costs (up to $100,000 on the amount of an individual employee’s compensation), to cover business expenses for an 8-week period between February 15, 2020 and June 30, 2020. Business expenses can include payroll costs, rents, mortgage interest, and utilities. PPP loans cannot exceed $10 million, will have a maturity of 2 years and an interest rate of .5%.

SBA will forgive a PPP loan if all employees are kept on the payroll for eight weeks and the money is used to cover payroll costs, and most mortgage interest, rent, and utility costs over the 8 week period after the loan is made and employee and compensation levels are maintained.

Additionally, the following requirements must be met:

  • No more than 25% of the forgiven amount may be for non-payroll costs. 
  • The loan forgiveness cannot exceed the principal. 
  • The amount of loan forgiveness is reduced if there is a reduction in the number of employees or a reduction greater than 25% in wages paid to employees. 
  • A decrease of employees or wages occurring between February 15, 2020 and April 26, 2020 shall not reduce the amount of loan forgiveness if by June 30, 2020 the borrower re-hires the employees that were previously laid off.

SBA Economic Injury Disaster Loan Program (“EIDL”)

Who is eligible?

Small businesses with 500 or fewer employees (or an industry size standard above 500 set by the SBA) affected by COVID-19. 

What kind of aid is available?

Low-interest working capital loans of up to $2 million with an interest rate of 3.75% for small businesses and 2.75% for nonprofits. Loan repayment terms vary by applicant, up to a maximum of 30 years. EIDL loans can cover accounts payable, debts, payroll and other bills that cannot be paid due to the COVID-19. Small business can apply for both a PPP and an EIDL loan, but cannot use them toward the same expenses.

Small Business Debt Relief Program

Who is eligible?

Small businesses with 500 or fewer employees (or an industry size standard above 500 set by the SBA) affected by COVID-19. 

What kind of aid is available?

Under the Small Business Debt Relief Program the SBA will cover all loan payments on non-EIDL loans, including principal, interest, and fees, for six months. This relief will also be available to new borrowers who take out loans within six months of the President signing the bill into law.

Eligible business can apply for SBA relief programs starting from April 3. Here‘s a guide on the SBA relief programs under CARES Act

Employment Law Update: Families First Coronavirus Response Act

The Families First Coronavirus Response Act (“FFCRA”), effective on April 1, 2020 through December 31, 2020, applies to leave taken for reasons related to COVID-19, between April 1, 2020, and December 31, 2020.  FFCRA pertain to private employers with fewer than 500 employees and certain public sector employers, and the benefits will apply to employees who have been employed for at least 30 days. 

Under FFCRA, employees are entitled to: up to two weeks (80 hours, or a part-time employee’s two-week equivalent) of paid sick leave at regular (100%) rate, up to $511/day ($5,110 in total) if employee: (1) is subject to a COVID-19 related federal, state, or local quarantine or isolation order; or (2) has been advised by a health care provider to self-quarantine related to COVID-19; or (3) is suffering from COVID-19 related symptoms and seeking a medical diagnosis; (4) up to two weeks (80 hours, or a part-time employee’s two-week equivalent) of paid sick leave at 2/3 pay, up to $200/day ($2,000 in total) if employee is caring for a relative in the situation described at (1) or to (2); or (5) up to 12 weeks of paid sick leave and expanded family and medical leave at 2/3 pay, up to $200/day ($12,000 in total) if employee is caring for his or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons; or (6) up to two weeks (80 hours, or a part-time employee’s two-week equivalent) of paid sick leave at 2/3 pay, up to $200/day ($2,000 in total) if employee is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.

Employers must post (or email to employees) a notice from the U.S. Department of Labor. The poster may be downloaded at this link: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

The FFCRA allows the U.S. Department of Labor to issue regulations to exclude emergency responders and/or businesses with less than 50 employees where the requirements “would jeopardize the viability of the business as a going concern.” The U.S. Department of Labor, however, has not yet issued regulations.  But the guidelines on the Department of Labor’s website provide that “[s]mall businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.”

Finally, employers are required to reinstate employees to the same (or equivalent) job position, if the employee took a paid emergency or sick leave under FFCRA.  Under certain conditions, an exception is provided for employers with fewer than 25 employees.  In the event, the employer with less than 25 employees must eliminate the employee’s position because of an economic downturn caused by the public health emergency, the employer must make a reasonable effort to restore the employee to an equivalent position at the end of the leave.  In the event, no equivalent position is available within 12 months following the leave, the employer must make reasonable efforts to contact former employee if another position equivalent to the last becomes available.