April 3, 2020

The CARES Act: Loan Program Options for Small Businesses to Consider

On March 27, Congress passed the Coronavirus Aid, Relief and Economic Security (CARES) Act to alleviate the economic impact of COVID-19 on both individuals and businesses. The legislation provides economic assistance to small businesses through several Small Business Administration (SBA) program options.

Paycheck Protection Program Loans

The Paycheck Protection Program prioritizes Americans employed by small businesses by authorizing up to $349 billion toward job retention and certain other expenses. The program provides qualified small businesses with loans of up to $10 million. The program is retroactive to February 15, 2020 to help bring workers who may have already been laid off back onto payrolls. Loans are available through June 30, 2020.

Who is Eligible?

Qualifying businesses in all U.S. states and territories:

  • Businesses, nwith 500 or fewer employees
  • Certain businesses with greater than 500 employees in certain industries, including the hotel and food industry
  • Sole proprietors and independent contractors
  • Approved franchises listed on the SBA’s registry
  • Businesses receiving funding through a Small Business Investment Company

Guidelines for Loans

  • Loans are up to two months of average monthly payroll costs from the last year plus an additional 25%
  • Maximum loan amount up to $10 million
  • Loans will be fully forgiven if the funds are used for payroll costs, interest on mortgages, rent and utilities however at least 75% of the forgiven amount must have been used for payroll
  • Payroll costs must not exceed $100,000 of annual compensation per employee
  • Initial loans have a maturity of 2 years and an interest rate of 1% (loans past the initial term have interest rates capped at 4%)
  • No collateral or personal guarantees are required
  • First payment deferred for six months
  • No borrower or lender fees payable to SBA as before

How to Apply

Small businesses and sole proprietors can apply starting April 3. Independent contractors and self-employed workers can apply starting on April 10.

Applications can be made through any existing SBA lender or federally insured depository institution or credit union, and Farm Credit System institution that is participating. Other regulated lenders will be available to make these loans once they are approved and enrolled in the program. Visit www.sba.gov for a list of SBA lenders.

For more information on the program including forms and the interim final rule, please visit the U.S. Department Treasury site. The rules and details remain in flux, so please check back often for additional changes and updates.

Economic Injury Disaster Loans and Loan Advances

The CARES Act expands the Small Business Administration’s long-standing Economic Injury Disaster Loan Program (EIDL) to offer financial support to more businesses experiencing reduced revenue due to the pandemic. Historically, the SBA has offered disaster relief assistance to businesses, homeowners and renters in specific areas where federally declared disasters occurred however, companies in all states and U.S. territories can now apply.

Who is Eligible?

  • Businesses with fewer than 500 employees
  • Cooperatives, ESOPs, and tribal small businesses with fewer than 500 employees
  • Sole proprietors, independent contractors and self-employed persons
  • Nonprofits and veterans organizations

Guidelines for Loan Advances

  • Loans are available up to $2 million to pay fixed debts, payroll, accounts payable and other bills that can’t be paid because of the disaster’s impact
  • The interest rate is 3.75% for small businesses and 2.75% for non-profits
  • Long-term repayments can be up to a maximum of 30 years and are determined on a case by case basis
  • Terms are determined on a case-by-case basis, based upon each borrower’s ability to repay
  • Payments on COVID-19 EIDL loans are deferred for one year
  • Borrowers do not have to prove they could not get credit elsewhere

How to Apply

The SBA offers additional information and details on the SBA site. Unlike the PPP loans, the EIDL submissions are made to SBA, not the banks directly.

Determining the Best Option for Your Business

Every business should consider the various assistance programs available to determine which may work best for both short- and long-term business planning. Remember that many states are also offering loans, grants and incentive programs. Consider all qualification criteria, terms and repayment options.

For questions or more information, please reach out to your Gibney contact or email info@gibney.com.

April 2, 2020

FY 2021 H-1B Cap Filing Period Opens

U.S. Citizenship and Immigration Services announced that H-1B cap-subject petitions for fiscal year (FY) 2021 may now be filed with USCIS if based on a valid selected registration.

What This Means for Employers

  • Employers may now file H-1B cap petitions for beneficiaries who were selected in the random selection process (“lottery”) that was completed March 27, 2020.
  • Employers or their representatives may access their online USCIS H-1B cap registration accounts to see whether a beneficiary was selected in the lottery. If the registration status indicates “selected,” the employer may file a FY 2021 H-1B cap petition for that beneficiary.
  • The H-1B cap petition must be properly filed for the selected beneficiary within the period indicated on the registration selection.
  • The registration selection notice specifies a 90-day filing period (April 1, 2020 through June 30, 2020) and designates the USCIS Service Center for submission of the petition. The registration selection notice must be printed and filed with the H-1B cap petition for the selected beneficiary.

Reminders

  • Online filing is not available for submission of H-1B petitions. Petitioners must submit a hard copy/paper petition to USCIS that includes a printed copy of the applicable registration selection notice.
  • Due to COVID-19, USCIS will temporarily accept all benefit forms, including Form 1-129 for H-1B cap petitions, with reproduced original signatures. (Employers must still retain the original documents containing the “wet” signature to provide to USCIS if requested at a later date.)
  • Effective March 20, 2020, USCIS has temporarily suspended premium processing service for all Form I-129 and I-140 petitions until further notice. This means that all H-1B cap petitions must be submitted under “regular” processing. If premium processing is later reinstated, employers may have the option of interfiling a premium processing request (with the applicable $1440 filing fee) to obtain a decision in 15 days.

Background

This was the first year that USCIS used an electronic registration system for the H-1B cap lottery instead of requiring employers to submit fully prepared H-1B cap petitions for selection in the lottery. The new system was generally viewed as a great improvement for employers and USCIS alike, and an overall success. USCIS received approximately 275,000 unique registrations during the registration period from March 1 to March 20, 2020.

USCIS received approximately 275,000 unique registrations during the registration period from March 1 to March 20, 2020, an increase of more than one third over last year, when 201,011 petitions were entered into the lottery. Approximately 46% of all registrations were for prospective beneficiaries with U.S. advanced degrees.

USCIS cautions that employers must still establish that selected beneficiaries are eligible for H-1B classification, and that the H-1B cap petition is approvable at the time the petition is filed and through adjudication, based on existing statutory and regulatory requirements. Selection in the lottery merely conveys eligibility to file an H-1B cap petition; the employer must still submit sufficient evidence to establish eligibility for the benefit sought. More information is available at the USCIS H-1B Electronic Registration Process page.

Gibney will work with employers to prepare and file H-1B petitions for selected beneficiaries during the 90-day filing window. For additional information, please contact your designated Gibney team or email info@gibney.com.

April 1, 2020

CARES Act: Retirement Plan Distributions and Loans Provisions for Employers

On March 27, 2020, Congress enacted the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Employees may be inquiring about whether they can receive distributions or loans from the company’s 401(k) plan to confront financial challenges resulting from the COVID-19 virus. The CARES Act includes several provisions regarding 401(k) distributions and loans that employers may wish to consider.

COVID-19 Related Distribution Provisions

  • A 401(k) plan may allow employees to receive COVID-19-related distributions for any taxable year from an employer that do not exceed $100,000 (aggregate) from all plans maintained by the company.
  • The 10% additional tax that applies to distributions for employers under age 59½ is waived between January 1, 2020 and December 31, 2020.

Who Qualifies for a COVID-19 Related Distribution?

  • Qualified distributions are any distribution from a 401(k) plan or other qualified plan made to an individual under the following circumstances:
  • Has been diagnosed with virus SARS-CoV-2 or COVID-19 by a test approved by the Centers for Disease Control and Prevention
  • Spouse or dependent has been diagnosed by such test
  • Experiences adverse financial consequences as a result of being quarantined, furloughed, terminated, subject to a reduction of hours or unable to work due to lack of child care, subject to reduced hours of a business owned or operated by the individual or other factors as determined by the Secretary of the Treasury
  • Plan administrators may rely on the employee’s certification that the distribution requirements are met.

Repayment Guidelines

  • Employees may repay the amount of these distributions included in income over the three-taxable-year period beginning with the taxable year the distribution is received
  • Employees may repay the aggregated amount of the distribution (or any portion thereof) by making one or more contributions to their company’s plan or any other eligible retirement plan of which the individual is a beneficiary that accepts eligible rollover contributions
  • Distributions are treated as eligible rollover distributions if they are repaid within three years following the date of the distribution

Temporary Waiver of Required Minimum Distributions

  • The CARES Act temporarily waives required minimum distributions from 401(k) plans and other defined contribution plans and IRAs for participants who were required to receive such distributions in 2020. The waiver does not apply to distributions beginning in calendar years after 2020.

Plan Loans

Plans may increase the amount of loans available to employees who are eligible to receive COVID-19-related distributions:

  • During the 180-day period following the enactment (March 27, 2020), employees may receive plan loans that do not exceed the lesser of $100,000 (increased from $50,000) or 100% (increased from 50%) of the present value of the employee’s nonforfeitable accrued benefit under the plan
  • The due date for the repayment of any outstanding plan loans occurring between March 27, 2020, and December 31, 2020 can be delayed for one year. Plans adopting this provision must adjust subsequent repayments appropriately to reflect the delay in repayment and any interest accruing during the delay

What Employers Should Consider if Making Plan Amendments

Distribution and loan provisions are at the discretion of each company.

If you decide to adjust these provisions, your plan document does not have to be amended until the last day of the plan year beginning in 2022 (December 31, 2022, because your plan is a calendar year plan).

Provisions are effective immediately. It is important to review any changes with service providers to determine any fees associated with provisions.

All provisions will require drafting updated employee communications and updating the plan’s distribution and loan procedures.

Meredith Mazzola
Partner, Tax Group
mmazzola@gibney.com

March 30, 2020

COVID-19 Travel: India Travel Restrictions and Evacuation Procedures

The India Government continues to implement new travel restrictions due to the COVID-19 pandemic. The following are guidelines for commercial flights and evacuation procedures for citizens of other countries who are in India:

Commercial Passenger Services Suspended Until April 14, 2020

All scheduled international commercial passenger services will remain suspended until April 14, 2020 at 6:30 PM GMT.

No incoming international commercial passenger aircrafts will be allowed to land and disembark passengers in India until April 14. This restriction will not apply to international all-cargo operations and flights specifically approved by the Directorate General of Civil Aviation. While there is no specific announcement regarding the departure of flights from India, no flights are leaving India at this time.

Evacuation Procedures for Citizens of Other Countries

The French, U.S., and United Kingdom governments, among others, are working with the Indian Government and airlines to obtain clearance for flights to leave India so their citizens may return to their home countries. Germany and Israel have already obtained permission to evacuate their citizens.

U.S. Nationals in India

The U.S. consulates in India anticipate that several flights will depart from New Delhi and Mumbai to the U.S. this week. U.S. citizens interested in departing from India on a U.S. government coordinated flight must complete a Repatriation Registration for U.S. Citizens Form as soon as possible to be notified of potential ticket availability. The form may be accessed at https://tinyurl.com/uscit-india.

British Nationals in India

British citizens who wish to return to the U.K. must email the High Commission of the United Kingdom at Conqry.Newdelhi@fco.gov.uk. The High Commission of the United Kingdom indicates that British nationals should be prepared to stay in-country until commercial flights resume. Additional information is available at https://www.gov.uk/foreign-travel-advice/india/return-to-the-uk.

Italian Nationals in India

Italian nationals are requested to report their presence to the Embassy of Italy in New Delhi by providing information to the Embassy on shorturl.at/qHWY1.

We are closely monitoring matters in India and will provide further updates as they are announced by the Indian government. If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

March 30, 2020

New DOL Guidance and Postings: What Employers Need to Know

Following up on the Families First Coronavirus Response Act (FFCRA) enacted on March 18, the United States Department of Labor (DOL) has released additional information explaining employers’ obligations and answering certain questions that have been raised about the new law. On March 24, the DOL issued guidance to employers on complying with the FFCRA which they continued to update over the course of the week. Specifically, the DOL issued a fact sheet which may be found here.

Guidance Updates

The DOL confirmed that the FFCRA will go into effect as of April 1, 2020 (not April 2 as previously reported). The DOL confirmed that covered employers will qualify for dollar for dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA and amounts paid by the employer to maintain health insurance coverage for the employee while on leave. The DOL also indicated that it will observe a temporary period of non-enforcement for the first 30 days after April 1, provided the employer has acted reasonably and in good faith to comply with the act. The DOL detailed what constitutes “good faith” in a service bulletin that may be found here.

Q&A on Employer Obligations

The DOL also released a set of Questions and Answers to assist employers in understanding their obligations under the FFCRA. Among the matters clarified in the Q&A’s was the calculation of the 500 employee threshold for coverage (only employers with fewer than 500 employees are covered). The DOL confirmed that both full time and part time employees working in the US are counted, and that two or more commonly ownership interests will be deemed separate employers unless they meet the integrated employer test under the Family and Medical Leave Act (FMLA).

In calculating the employee’s rate of pay for paid leave purposes, commissions and tips are included. The DOL also indicated that an employee can only take 80 hours of leave for any purpose, such that the employee cannot use 80 hours of leave for self-quarantine and then later seek emergency sick leave for a different reason. An employee who is unable to work or telework because a child’s school is closed may take 2 weeks of paid emergency sick leave and 10 weeks of paid expanded FMLA leave; however, the employee may take no more than 12 weeks of FMLA leave in any 12 month period. The DOL also clarified the circumstances under which FFCRA expanded leave may be taken intermittently.

New Guidelines for Leave Requests

The DOL Q&A’s provided examples of documentation that an employer may require of the employee requesting leave. The DOL also clarified that if the employer closes its workplace or furloughs the employee before the employee requests leave, the employee will be ineligible for FFCRA leave. In addition, if the employer shuts its workplace during a leave, the leave will end. The same would be true if the employee’s position is among those being laid off; however, the employer would need to show that the employee’s layoff was unrelated to the leave. In addition, if the employer reduces the employee’s hours, the employee may not use paid sick leave or family leave to make up the hours.

Small Business Exemption Criteria

The DOL also detailed the requirements for an employer of fewer than 50 employees to take advantage of the small business exemption from the FFCRA. Specifically, a small business may claim this exemption if an authorized officer determines that one of the following three criteria are met:

  • The provision of the requested leave would result in the employer’s expenses and financial obligations exceeding available revenues and cause the small business to cease operating at a minimal capacity;
  • The absence of the employee requesting leave would entail a substantial risk to the financial health or operational capabilities of the employer because of the employee’s specialized skills, knowledge of the business, or responsibilities; or
  • There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee requesting leave, and these labor or services are needed for the employer to operate at a minimal capacity.

Required Employee Notice and Poster

Finally, on March 26, the DOL provided additional guidance on the notice mandated to be given to employees by April 1, 2020, and the acceptable methods of physical and electronic communicating the notice. The DOL also provided a poster which employers may use to provide the notice.

Best Practices for Employers

The above summary of the latest DOL guidance on the FFCRA is not meant to be exhaustive and employers are encouraged to review the DOL guidance in its entirety. Employers also are encouraged to continuously review the DOL site as the information is being updated frequently. As the DOL guidance cannot anticipate every employer question based on their specific circumstances, employers should consult with an attorney with their specific questions or if they require more clarity on this new law.

March 30, 2020

New York State Tax Deadline Extended to July 15

New York State has extended the deadline for personal income tax and corporation tax returns from April 15, 2020 to July 15, 2020. This is in keeping with the federal tax deadline which was extended to July 15. This extension applies to individuals, fiduciaries (estate and trusts) and corporations. Taxpayers will be allowed to defer all related payments due on April 15, 2020 to July 15, 2020, without penalties and interest.

What this Means for Filing Returns

  • Taxpayers do not need to take any additional steps to apply for relief. Returns due on April 15, 2020 will automatically be granted the filing and payment deadline extension and relief from penalties and interest. Taxpayers who are due a refund are still urged to file as soon as possible.
  • 2019 returns due on April 15, 2020, and related payments of tax or installments of tax, including installments of estimated taxes for the 2020 tax year, will not be subject to any failure to file or pay, late payment or underpayment penalties or interest if filed and paid by July 15, 2020
  • If you are unable to file by the new deadline you can request an automatic extension. Your return will be due on October 15, 2020, if the extension request is filed by July 15, 2020 and you properly estimate and pay your 2019 tax liability with your extension request.
  • Interest, penalties, and additions to tax with for extended filings and payments start to accrue on July 16, 2020.
  • If you already filed your 2019 return and scheduled your direct debit payment, it will not be automatically rescheduled to occur on July 15, 2020. You must cancel and schedule a new direct debit payment.
  • Fiduciary income tax returns are due September 30, 2020, for calendar-year taxpayers who request an automatic extension to file by July 15, 2020.

Exceptions

  • No extension is provided for any other type of state tax, or for the filing of any state information return.
  • Payment of income tax withheld by employers using Form NYS-1, Return of Tax Withheld, must be made on time.

For more information, visit: www.tax.ny.gov.

Meredith Mazzola
Partner, Tax Group
mmazzola@gibney.com

March 27, 2020

H-1B Initial Electronic Registration Selection Process Completed

Today USCIS announced that it received enough electronic registrations during the initial registration period to reach the FY 2021 H-1B cap. A random selection (lottery) was conducted from the registrations properly submitted.

What Employers Can Expect

USCIS will notify petitioners with selected registrations no later than March 31, 2020 that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the selected registration.

Registrants’ online accounts will now be updated to show one of the following statuses for each beneficiary registered:

  • Submitted: A registration status may continue to show “Submitted” after the initial selection process. These registrations will remain in consideration for selection until the end of the fiscal year, at which point all registration statuses will either be Selected, Not Selected, or Denied. If petitions are not filed for selected beneficiaries with the designated 90-day filing window, USCIS may conduct another lottery from the reserve Submitted registrations until the cap is reached.
  • Selected: Indicates that the employer may file an FY 2021 H-1B cap-subject petition for the beneficiary.
  • Denied: Either a duplicate registration was submitted by the same registrant for the same beneficiary, or a payment method was declined and not reconciled. If the denial is due to a a duplicate registration, all registrations submitted for this beneficiary for the fiscal year are invalid.

Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2021 and only for the beneficiary in the applicable selected registration notice. Employers will have a 90-day window during which to file. The filing period is expected to start no later than April 1. For more information, visit the H-1B Electronic Registration Process page.

Gibney will continue to monitor the FY 2021 H-1B cap process and provide updates, and will work with employers to file H-1B petitions for selected beneficiaries during the designated filing window. For additional information, please contact your Gibney legal team or email info@gibney.com.

March 27, 2020

USCIS Operational Changes in Response to COVID-19

Due to the impact of COVID-19 on its operations, USCIS has implemented several changes to the processing of petitions and the completion of forms. USCIS has also temporarily suspended all in-person services at its offices, including interviews and biometrics collection.

Temporary Suspension of Premium Processing

Effective March 20, 2020, USCIS has temporarily suspended premium processing service for all Form I-129 and I-140 petitions until further notice.

What This Means for Employers and Foreign Nationals

  • USCIS will process petitions with a previously accepted Form I-907, Request for Premium Processing Service.
  • For all petitions mailed before March 20 but not yet accepted, USCIS will reject Form I-907 and return the $1,440 filing fee.
  • Petitioners who filed a Form I-129 or Form I-140 using premium processing service who receive no agency action within the 15-calendar-day period will receive a refund.
  • Petitioners may submit a request to expedite their petition if it meets the expedite criteria.

Flexibility in Submitting Signed Petitions and Applications

USCIS will temporarily accept all benefit forms and documents with reproduced original signatures, including Form I-129, for submissions dated March 21, 2020 and after.

What This Means for Employers and Foreign Nationals 

  • For forms that require an original “wet” signature, USCIS will accept electronically reproduced original signatures. This temporary change only applies to signatures – all other form instructions should be followed.
  • Individuals or entities that submit documents bearing an electronically reproduced original signature must retain copies of the original documents containing the “wet” signature.
  • USCIS may, at any time, request the original signed documents, which, if not produced, could negatively impact the adjudication of the immigration benefit.

Automatic Extension of Some Filing Deadlines

On March 27, 2020 USCIS announced that it would extend response deadlines for some requests for evidence (RFEs) and notices of intent to deny (NOIDs).

What This Means for Employers and Foreign Nationals   

  • For applicants and petitioners who receive an RFE or NOID dated between March 1, 2020 and May 1, 2020, a response will be considered timely submitted if it is received at USCIS within 60 calendar days after the response deadline set in the RFE or NOID.
  • If an RFE or NOID is dated prior toMarch 1, 2020, applicants and petitioners must respond by the specified deadline.

In-Person Appointments Suspended

USCIS has suspended in-person services in-person services at all field offices, asylum offices and Application Support Centers (ASCs), including the collection of biometrics, through at least April 7, 2020. USCIS will provide limited emergency services which must be coordinated through the USCIS Contact Center.

What This Means for Employers and Foreign Nationals

  • The inability to collect biometrics and conduct in-person interviews will slow the adjudication of associated benefits, including applications for employment authorization, advance parole travel documents, and adjustment of status (“green card”) applications, among others.
  • Field offices will send notices to applicants and petitioners with scheduled appointments and naturalization ceremonies.
  • Asylum offices will send interview cancellation notices and automatically reschedule asylum interviews; applicants will receive a new interview notice with the new time, date and location.
  • ASCs will be automatically reschedule biometrics appointments when normal scheduling resumes and will send new appointment letters in the mail.
  • Individuals with InfoPass or other appointments must reschedule through the USCIS Contact Center once field offices are open to the public.

Ongoing Updates

The situation is rapidly evolving. USCIS continues to follow CDC guidelines and posts updates at USCIS.gov.  This site should be checked regularly. For additional information, please contact your Gibney legal team or email info@gibney.com.

March 26, 2020

USCIS FY 2021 H-1B Cap Update

The electronic registration period for the fiscal year 2021 (FY 2021) H-1B cap season successfully concluded on March 20, 2020.

What’s Next?

USCIS is expected to conduct its random selection process (lottery) of submitted registrations by March 31, 2020.  Selected registrants (employers) will have a 90-day window during which to file H-1B cap petitions for their selected beneficiaries.  The petition filing period is expected to start not later than April 1, 2020.   Employers may file  H-1B cap petitions for selected beneficiaries only; no substitutions are permitted.

What Should Employers Expect?

USCIS intends to notify employers and their legal representatives of lottery results no later than March 31, 2020.  USCIS will generate an email alerting employers and their legal representatives that the status of a registration has changed.  Recipients may then log into their USCIS accounts to view the status of individual beneficiaries included in the registration.  If a beneficiary has been selected, the system will generate a selection notice specifying the filing period for the H-1B cap petition for that individual. This notice must be  printed and submitted with the H-1B petition during the designated filing period. The filing period will be at least 90 days.

Premium Processing Suspended

Due to the impact of COVID-19 on USCIS  Service Center operations,  USCIS has suspended premium processing for ALL I-129 petitions, including H-1B cap petitions, until further notice.  As a result, for the foreseeable future, all H-1B cap petitions must be filed during the designated filing window using regular processing.

USCIS initially planned to implement  a two-tiered approach for premium processing of FY 2021 H-1B cap petitions, first allowing  premium processing for petitions requesting a change of status from F-1 nonimmigrant status (starting not later than May 27, 2020), followed by premium processing availability for all other H-1B cap petitions  (starting not later than June 29, 2020). This schedule was subsequently  suspended due to COVID-19. Once premium processing service resumes, USCIS may implement a similar schedule and two-tiered approach. For more H-1B cap information, you may visit USCIS’s  H-1B FY 2021 Cap Season page.

Gibney will continue to monitor the FY 2021 H-1B cap process and provide updates, and will work with employers to file H-1B petitions for selected beneficiaries during the designated filing window.  For additional information, please contact your Gibney legal team or email info@gibney.com.

March 26, 2020

COVID-19: U.S., Mexico and Canada: Temporary Travel Restrictions for Land Ports of Entry & Ferry Service

UPDATE – APRIL 22, 2020:  On April 20, 2020, the Centers for Disease Control (CDC) issued an order extending the suspension of entry of  certain persons traveling  to the US from Canada and Mexico through land ports of entry through 11:59 pm ET on May 20, 2020.

The United States reached mutual agreements with Canada and Mexico to limit non-essential travel at land Ports of Entry and ferry terminals to reduce the spread of COVID-19. The restrictions do not apply to air travel.

Effective Dates

The restrictions are effective as of March 20, 2020 at 11:59 p.m. EDT and will remain in effect until at least April 20, 2020 at 11:59 p.m. EDT.

Restricted Non-Essential Travel

Restricted non-essential travel includes individuals traveling to the U.S. for tourism purposes, including sightseeing, recreation, gambling or attending cultural events.

Essential Travel

Essential travel is permitted. On March 24, 2020, U.S. Customs and Border Protection (CBP) published Federal Register notices with additional information about impacted travel from Canada and Mexico, specifying that essential travel includes, but is not limited to:

  • U.S. citizens and lawful permanent residents returning to the United States;
  • Individuals traveling for medical purposes (e.g., to receive medical treatment in the United States);
  • Individuals traveling to attend educational institutions;
  • Individuals traveling to work in the United States (e.g., individuals working in the farming or agriculture industry who must travel between the United States and Mexico or Canada in furtherance of such work);
  • Individuals traveling for emergency response and public health purposes (e.g., government officials or emergency responders entering the United States to support Federal, state, local, tribal, or territorial government efforts to respond to COVID-19 or other emergencies);
  • Individuals engaged in lawful cross-border trade (e.g., truck drivers supporting the movement of cargo between the United States and Mexico or Canada);
  • Individuals engaged in 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; and
  • Individuals engaged in military-related travel or operations.

Essential Travel Caution

Despite CBP’s fairly broad definition of essential travel, not all business travel may be deemed essential by a CBP officer at a Port of Entry. The American Immigration Lawyers Association is reporting that CBP officers at some Ports of Entry on the Canadian border continue to adjudicate L petitions and TN applications, while at other ports, CBP indicates it is waiting for more guidance. There are also anecdotal reports that some CBP officers have denied petitions and admission to individuals because their employment was not deemed essential.

With respect to travel from Mexico, U.S. consular closures in Mexico directly impact the ability to secure L and TN visas for admission to the U.S.

Travelers with valid visas and visa exempt travelers, including individuals traveling on the Visa Waiver Program, may be admitted at Ports of Entry from Canada or Mexico, though these travelers should also expect scrutiny as to whether their travel meets essential travel criteria. Individuals planning to enter the U.S. from Canada or Mexico during the restricted period should confer with counsel prior to travel.

As a reminder, foreign nationals who have traveled in one of the otherwise restricted countries (China, Iran and Europe) in the 14 days prior to requesting admission to the U.S. from Canada or Mexico will not be admitted.

Finally, CBP advises that any person with COVID-19 symptoms should not make a personal appearance at a Port of Entry.

For additional information, please contact your Gibney representative or email info@gibney.com.