In recent weeks, we've heard from many employers and international employees worried about their immigration status. The outbreak of the novel coronavirus (COVID-19) pandemic has led governments across the world to implement a range of temporary immigration-related measures in order to contain the spread.
Sponsored by Nova Credit, on March 30th, we joined a panel of experts including our legal partner, Hendrik Pretorius, Immigration Counsel of ImmiPartner, and Patrick Taurel, Senior Attorney, Clark Hill for an informative webinar on how the immigration landscape is changing in the face of travel bans and restrictions. Our paralegals and partner attorney provided answers to the FAQs asked during the webinar.
These answers should not be taken as legal advice, and you should always consult with counsel on the details of your specific case.
1. What if someone's H-1B is denied or their assignment ends and given the travel restrictions, they cannot return to their home country?
A: Under current regulations, nonimmigrant workers have a 60-day grace period of unemployment time during each authorized period of stay. If the nonimmigrant worker is reaching the end of his/her 60-day grace period, and travel restrictions are still in place, it may be possible that he/she apply for a Visitor Visa by submitting form I-539, Application To Extend/Change Nonimmigrant Status (please note that Visitor Visas are not work authorized). For more information on required actions after a denial or termination, please consult counsel for guidance specific to your circumstances.
2. Is there any update to the H-1B grace period (60 days) during the duration of coronavirus, in the event of layoffs?
A: At this time, there has not been an update to the grace-period allowed to nonimmigrant workers following employment termination. Under current regulations, nonimmigrant workers have a 60-day grace period (assuming they have at least 60 days left on their I-94 authorized period of stay) to leave the U.S., find a new employer, or change visa status.
3. What happens if status expires for a foreign national, during this crisis, and they are in the U.S. and are sponsored by their employer?'
A: If an international employee’s I-797 approval notice expires, and a timely-filed extension has not been submitted, USCIS discretionarily recognizes the international employee to have 10 calendar days of “grace period” to:
1) apply to extend their current status with their current employer or through another employer;
2) apply to change to another nonimmigrant status (such as B-1/2, H-4, etc.); or
3) collect their affairs and leave the U.S. within the grace period window.
At the end of the 10-day grace period, the international employee may begin accruing unlawful presence in the U.S. Foreign nationals who accrue more than 180 days of unauthorized stay in the U.S. may be barred from reentry and/or subject to removal proceedings. If a person is unable to travel due to COVID restrictions it might be worth considering a change of status application to a visitor status or otherwise.
Note: The international employee does not have work authorization during this 10-day grace period.
4. What is your advice for employees traveling back to their home country during this time?
A: Until further notice, it is broadly recommended that all non-essential international travel be postponed indefinitely. If international travel cannot be postponed, please be prepared to remain in the country of destination for an extended period of time. Routine visa services have been suspended at all U.S. Embassies and Consulates. Moreover, the entry of international employees who were physically present in certain countries is also suspended. For more information, please consult the Department of State’s COVID-19 Country Specific travel advisories.
5. Can H-1B employees work from home? If yes, for how long? Can H-1B employees work from home from a different state/country than our employer?
A: H-1B, H-1B1, and E-3 employees may continue to work for their employer from home indefinitely, provided that their home address is within the same Metropolitan Statistical Area (MSA) as that which was listed on the Labor Condition Application (LCA) included with the original petition filing.
- The same Metropolitan Statistical Area is defined by being within reasonable commuting distance from the worksite location listed on the LCA (generally, approximately 50 miles from the worksite location).
If the employee’s home address is located in the same MSA as the worksite listed on the LCA, it is best practice to have copies of the LCA that was included in the original petition posted in two separate and clear locations at the home address for a minimum of 10 calendar days (eg: kitchen and study; living room and den; etc.) or to use electronic posting methods. Please reach out to counsel with additional questions if you have confusion about the area of intended employment and MSAs of specific employees’ worksites and home addresses.
If an H-1B, H-1B1, or E-3 employee is not working from home within the same MSA or reasonable commuting distance from their worksite, the Department of Labor has allowed employees up to 30 working days to perform work from this alternative secondary location (such as a home address). In some situations a 60 day short term placement option may also apply. Thereafter, an amendment must be on file with the USCIS before continuing to work at this new worksite.
6. Can H-1B workers take unpaid/reduced pay leave?
A: H-1B, H-1B1, and E-3 employees may take voluntary pay leaves, although the employer should keep a detailed record of the employee’s documented wish to take unpaid leave if this is the case. Employers may reduce the salaries of their H-1B, H-1B1, and E-3 employees in certain instances without further action depending on whether these are across-the-board salary changes and whether the new salary is still above the required prevailing wage requirements and actual wages paid to others in the same or similar roles. In other instances amendments will be needed. This is an item to discuss right away in anticipation of any changes as the best practice is to get a new LCA and amendment prepared and filed prior to affectuating such changes. For further information, please contact your attorney and legal representatives.
7. If the company decides to go on full furlough or partial furlough (required to take a couple of days off during each pay period) how does this impact foreign nationals?
A: The answer depends on which visa type the international employee holds. If they hold an H-1B, H-1B1 or E-3 visa, the Department of Labor regulations requires the employer to pay the full required wages, even in the event of a company-wide furlough. This means a full or partial furlough is not permitted for employees in valid H-1B, H-1B1 or E-3 status. It is possible to reduce the employee’s hours to 35 per week, as long as the salary remains at or above the prevailing wage requirement.
If the employee holds an L-1, E-1, E-2, TN or O-1 visa, it could be possible to furlough your international employees. However, we recommend consulting with counsel prior to making any changes.
8. What is the status of current H-1B registrations? Do we have hope starting now until Sept 30, 2020, for our applicants?
A: USCIS made registration selections available by end of day on March 31st, effectively ending the 2020 H-1B lottery selection period. If USCIS does not receive enough H-1B petitions from selected registrants before the June 30th filing deadline, USCIS may continue to select H-1B registrants until they receive enough petitions to reach the numerical cap. However, with 275,000 registrations submitted this year, the odds of being selected after March 31st remain unlikely. USCIS will officially end the H-1B selection period by September 30th. All registration status should be updated no later than October 1st.
It is USCIS’s intention to adjudicate all H-1B cap-subject applications by the October 1st starting validity date. However, in past years, due to increased volume, USCIS has been unable to guarantee all petitions would be adjudicated by this date.
9. Would I be able to travel back (if and when) with a valid passport and the I-797, or would I need the actual visa stamped?
A: Individuals traveling through the Visa Waiver Program (“ESTA”) or who are Canadian citizens are not required to obtain a visa in order to enter the United States. All other immigrants and nonimmigrant visa categories are required to have a valid visa in their passport in order to enter.
Unfortunately, the U.S. Consulates and Embassies have temporarily suspended routine visas services at this time. The Department of State will issue emergency visas as resources allow. Please visit your consulate’s website for the latest information regarding emergency visas services and consular operations.
10. For applicants in the U.S. with pending H-1B petitions, is premium processing canceled? Is any processing happening? If the processing takes longer than the existing work permit (currently on OPT) am I allowed to keep working?
A: On March 20, 2020, USCIS announced the immediate suspension of Premium Processing for all I-129 and I-140 forms, including H-1B petitions. However, USCIS will process any previously accepted Form I-907s that were filed prior to March 20th. All cases filed after March 20th will be adjudicated with regular processing.
Individuals who are currently in F-1 status, whose case is not adjudicated by October 1, 2020, and who do not have valid underlying employment authorization (such as OPT or STEM OPT), will not be able to continue working.
There have been no announcements from USCIS at this time that they will be making exceptions to this due to COVID-19, however we will continue to monitor for any updates. If you are concerned about your ability to work past October 1, 2020, please consult your attorney who can discuss additional options.
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.