Q: What happens to international employees if their H-1B visa is denied or their assignment has ended during the pandemic and they cannot travel home due to restrictions?
A: As all nations work together to take preventative measures in order to overcome the coronavirus (COVID-19) pandemic, economies worldwide have seen a dramatic decline affecting all large and small businesses alike. While some larger organizations might have the capacity to ride out this unexpected storm, others are forced to make critical financial decisions resulting in furloughs, layoffs and shutdowns affecting the immigration status of their organization’s foreign national population who rely on continuous employment to maintain legal status in the United States.
In the event of layoffs, the end of an assignment, or a denied H-1B petition during the COVID-19 pandemic, many organizations and international employees are wondering how legal immigration status in the United States can be maintained in the event that an international employee is unable to return to their home country due to travel restrictions or other unforeseen circumstances outside of their control.
In the case of an H-1B holder whose assignment has ended or is laid off, they may have a 60-day grace period to find a new petitioner and file an H-1B Change of Employer petition, giving them a pending H-1B transfer, and allowing them to begin working for the new petitioner upon issuance of a receipt notice.
However, in the event that an international employee is unable to find a new petitioner within the 60-day grace period, one option may be to file an I-539 Change of Status to B-2 Visitor status application. With the I-539 application, it is best practice to include as much information and evidence regarding the applicant’s reason for extending their stay in the United States in order to be granted the maximum amount of time allowed in B-2 status (6 months).
It is important to keep in mind that processing times at USCIS are also affected by the COVID-19, so if the I-539 application remains pending past the requested expiration date of the B-2 status, it may be advised for the international employee to exit the United States in order to avoid overstaying their status. Please consult legal counsel before taking any action with your status.
- Current USCIS processing times
- Instructions on the I-539, Application to Extend/Change Nonimmigrant Status
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a Bridge-affiliated partner attorney or another qualified legal professional.