Concern for the spread of Coronavirus (COVID-19) has caused a number of organizations to consider new measures to prevent the spread of COVID-19, including school and office closures and event cancellations. Compounding these measures, President Trump announced restrictions on travel to the United States. These measures will impact foreign nationals who are in the United States or who are attempting to travel to the United States to work, attend school, conduct research and participate in other activities. Below is an overview of how travel and certain visa classifications will be impacted by measures to prevent the spread of COVID-19. We note that policies are changing daily, and we encourage you to check back or consult with an immigration attorney for updates.

Working from home for foreign national workers

The H-1B, E-3 and H-1B1 immigration classifications are location-specific, which means that the sponsored employee may only work for the sponsoring employer at the work location(s) specified in the Labor Condition Application filed with the H-1B petition. Changes in employment may require an amended visa petition. Generally, short periods of time working from home (10 days or fewer) should not affect the underlying immigration status provided that the employee continues to perform duties and be paid in accordance with the representations made in the underlying visa petition.

The L-1, E-1/E-2 and TN immigration classifications have more flexibility should sponsoring employers choose to have a temporary suspension of operations or request that employees work from home. Thus, similar to the above, short periods of time working from home should not affect the underlying immigration status, provided that the foreign national worker continues to perform work or activities in accordance with the representations made in the underlying visa petition.

Unpaid leave

Generally, most foreign national employees, including those in H-1B, who must take a period of short, unpaid leave due to a required quarantine or other COVID-19-related measure may do so, provided that the leave is approved and taken pursuant to the employer’s policy.

It is recommended that any employer who is considering closures, work-from-home, or other arrangements consult with an immigration attorney to discuss the impact on any foreign national workers.

Program modifications and closures for F-1 and M-1 students and J-1 exchange visitors

F-1 and M-1 Students: On March 9, 2020, Immigration and Customs Enforcement published the following Broadcast Message, stating: “SEVP intends to be flexible with temporary adaptations. In all cases, schools and students should document any decisions made and be able to provide this information to SEVP upon request. Similarly, changes to workplace requirements may impact nonimmigrant students engaging in practical training. SEVP encourages such students to consult with their employer to seek alternative ways to maintain employment, such as teleworking or other arrangements.”

J-1 Exchange Visitors: Similar to F-1 Visas, the State Department’s Bureau of Educational and Cultural Affairs released a series of guidance for J-1 Sponsors and J-1 visa holders about adapting J-1 programs, including most recently stating: “We anticipate a range of changes to program circumstances that will affect exchange visitors. ECA asks sponsors and exchange visitors to consult with host organizations to seek alternative ways to maintain program objectives and/or employment, such as telework, online classes, or other arrangements, while preventing unnecessary exposure to the disease and its spread. A temporary modification along these lines for exigent circumstances beyond a sponsor’s or host entity’s control does not undermine a program’s consistency with the regulations.”

Change to foreign national travel to the United States

The Trump Administration has imposed a series of travel bans on foreign nationals seeking to enter the United States from certain designated countries. Foreign nationals who were physically present within the following countries during the 14-day period preceding their attempted entry will be prohibited from entering the United States, with exceptions:

Austria, Belgium, China, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Iran, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and Switzerland.

This ban will remain in effect until terminated by the President.

Employers should prepare for the possibility that foreign national employees who are physically present abroad may be unable to obtain a visa from a U.S. Consulate or enter the United States. Employers should use extreme caution before sending their foreign national employees internationally and clearly communicate those risks to their employees.

Exceptions to the Presidential Proclamation

Currently, the travel suspension related to the European Schengen Area does not apply to foreign nationals traveling from the United Kingdom. Additionally, the following travelers are not subject to the travel ban, but may be required to undergo additional screening upon arrival to the United States:

• U.S. citizens;
• U.S. lawful permanent residents;
• Spouses of U.S. citizens and lawful permanent residents;
• Parents and legal guardians of unmarried U.S. citizen children or lawful permanent resident children, under the age of 21;
• Siblings of U.S. citizens or lawful permanent residents, provided that both are unmarried and under the age of 21;
• Children, foster children or wards of U.S. citizens or lawful permanent residents;
• Prospective adoptees seeking to enter the United States on an IR-4 or IH-4 visa;
• Foreign nationals traveling at the invitation of the United States Government for a purpose related to containment or mitigation of COVID-19;
• Foreign national air or sea crewmembers;
• Foreign nationals who hold certain A, C, E-1 (as employees of TECRO or TECO), G and NATO nonimmigrant visa classifications;
• Foreign nations who fall within the scope of section 11 of the United Nations Headquarters Agreement;
• Foreign nationals whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the CDC;