How the Executive Order impacts Nonimmigrant Visa Holders
On April 22, 2020 President Trump signed an executive order restricting certain immigration beginning today, April 23, 2020. The Executive Order is in place for the next 60 days, subject to extension. While the Executive Order is limited only to immigrant visas outside the U.S. with some exceptions, many of our clients have questions about the impact on nonimmigrant visa holders.
Under the current Executive Order, nonimmigrant visa categories are not impacted whatsoever, including the following:
F-1 Students (including OPT and STEM OPT)
H-1B/H-4, L-1/L-2, and TN Temporary Work Visa Holders
(Including FY 2021 H-1B Cap Applicants)
B-1/B-2 Visa Holders
Applicants of Any Type within the U.S.
(i.e. Not Applying at a Consulate/Embassy)
B-1/B-2 Visa Holders
Temporary Student Visas and Work Visas at the Consulates/Embassies
(When Consulates/Embassies Reopen)
If you are outside the U.S. and hold a valid nonimmigrant visa, you will be able to travel back to the U.S. as soon as the current travel restrictions are lifted. We do not have a timeline for when that will happen, as that involves country coordination and for the airlines to resume normal operations.
If you have a valid nonimmigrant approval notice and are waiting to attend stamping, you will be able to do so as soon as the consulates/embassies reopen. The current Executive Order will not prevent you from having your nonimmigrant visa issued and traveling to the U.S.
As most of our clients are asking questions about H-1B and F-1, please see the guidance below regarding some common situations:
H1B:
If you hold an H-1B visa and were outside the U.S. when the travel restrictions went into place, you will not be able to travel back until restrictions are lifted and the airlines resume. Please note that time spent outside the U.S. can be recaptured in your future applications as it does not count towards the six-year maximum for H-1B.
If you were outside the U.S. waiting to attend H-1B visa stamping, you will still be able to obtain your H-1B visa as soon as the consulates/embassies reopen.
If you were outside the U.S. waiting to attend H-1B visa stamping, you will still be able to obtain your H-1B visa as soon as the consulates/embassies reopen.
F1 :
If you hold an F-1 visa and were outside the U.S. when the travel restrictions went into place, you will have to wait for the restrictions to be lifted and airlines to resume before you can travel back.
If you have completed your studies and were participating in a period of OPT or STEM OPT before you departed, you will be able to return to the U.S. and finish your practical training when the travel restrictions are lifted.
If your OPT/STEM OPT expires prior to the restrictions being lifted and you are not eligible for any extension, it will not be possible to recapture that time and you will be bound by the expiration date of your EAD. If DHS or ICE issues any guidance for students in this unique situation, we will update our clients immediately.
If your OPT/STEM OPT expires and you wish to return to the U.S. as a student and participate in additional practical training, you can apply for a new program of study at a higher degree level than your previous degree. This will allow you to participate in CPT, but only if it is at a higher degree level than the degree you previously obtained and participated in practical training for.
If you are experiencing any change in your authorized employment due to COVID-19 (work location changes, project changes, unemployment, etc.) and have any concerns about what is required to maintain status, please reach out to us.
USCIS Response to Date:
1. On March 16, USCIS announced that it would temporarily suspend Premium Processing for Cap-Subject petitions for the fiscal year 2021.
2. The suspension on Premium Processing was extended to all I-129 and I-140 petitions in an announcement on March 20.
3. On March 17, USCIS closed many of its public offices nationwide, in an effort to comply with the social distancing recommendations from the Department of Health and the White House. The closures, originally intended to last through April 1, have been extended to at least May 3.
4. On March 20, USCIS announced that it would accept electronically reproduced original signatures. In other words, USCIS will accept scanned/faxed/photocopied/or similarly produced copies of original signatures. USCIS did not state e-signatures would be accepted, only copies of wet signatures. USCIS has stated that the original wet signature pages must be kept on file, as USCIS can request the original signatures at any time.
5. On March 27, USCIS announced that for applicants and petitioners who receive an RFE or NOID dated between March 1 and May 1, 2020, any responses submitted within 60 calendar days after the response date set forth in the RFE or NOID will be considered by USCIS before any action is taken.
The measures taken by USCIS came on the heels of the decision of many U.S. consulates across the world to temporarily close to avoid the spread of the virus. Additionally, many countries, including the U.S. and India, have suspended incoming immigration and effectively closed their borders, with some exceptions.
USCIS has emphasized that it is continuing to process immigration cases. The March 20 announcement regarding wet signatures and the March 27 announcement regarding eligible RFE and NOID deadlines were issued to reasonably accommodate the limitations petitioners (and their attorneys) face while complying with state-mandated closures and orders to work remotely.
Please note that while USCIS has not yet stated that the March 27 announcement will extend to all immigration petition deadlines, its actions so far indicate a degree of reasonableness. The American Immigration Lawyers Association (AILA) sent a letter to USCIS on March 23 demanding an immediate suspension of all immigration-related deadlines.
DOL Response and the Families First Coronavirus Response Act:
The Department of Labor has largely followed other organizations responses. On March 20, the DOL published a FAQ on its website stating that the agency is permitting extensions of deadlines for filing employer documents such as sponsorship-related documents and prevailing wage determinations. If these filings were due between March 15 and May 15, the DOL will consider a response timely if the filing is submitted before May 12. The DOL also implemented the Families First Coronavirus Response Act, which is a part of the Family and Medical Leave Act (FMLA). All qualifying employees are guaranteed paid sick leave and expanded family and medical leave if the employee is unable to work or telework for reasons related to COVID-19.
• Two weeks (up to 80 hours) of paid sick leave at the employees regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
• Two weeks (up to 80 hours) of paid sick leave at two-thirds the employees regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.
Additionally, parents are given additional advantages:
• Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee's regular rate of pay where an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
Effects on and of Concerning the Public Charge Rule
Recently, USCIS has imposed stricter regulations on eligibility for H-1B employment, specifically for individuals who have received government benefits like unemployment. In August 2019, the Trump Administration and USCIS passed a rule redefining the term "public charge," beginning February 24, wherein an individual seeking nonimmigrant visa status (like H-1B) cannot receive unemployment in order to receive or keep that status. However, in light of the COVID-19 situation, USCIS announced on March 16 that it will not consider an individual seeking treatment for COVID-19 to be a public charge. Additionally, the new rule provided that, while an H-1B holder cannot be eligible for unemployment, if the holder has a spouse with H4 EAD status, the spouse may be allowed to apply for unemployment without risking either individual's status. It may be possible, in the case of an H-1B employee who loses employment due to reasons involving the COVID-19 situation, for the employee to qualify for the Coronavirus Aid Stimulus Package (passed by Congress on March 27) or other similar government provisions that USCIS might have otherwise regarded as substantially similar to unemployment benefits and therefore negatively affecting the employee's status.
COVID-19 FAQ
1. Can H-1B employees work from home at a different location not covered by the LCA? If so, does that require an amendment?
If the employee lives within the required geographical area (within the MSA listed in the employee's LCA), the employee may be able to work from home without filing an amendment. The H-1B employer must provide these employees with hard copies of LCA notice postings that employees display in-home and make the LCA notice postings publicly available electronically as the employer would normally do.
If the employee lives outside the required geographical area, an amendment may be required.
2. Do H-1B employers have to pay H-1B employees if the employees are unable to work at all? (due to state government-mandated closures)
Again, the current USCIS and DOL announcements do not indicate a suspension of H1B employers obligations to pay employees, even in the absence of work. Current regulations suggest that the COVID-19 situation qualifies as an employment-related circumstance, where state regulations require plants and offices to close and employees to work remotely. If the nature of the employees assigned work is such that working remotely is not possible, the situation would likely be regarded as one where there is no work available, and the employee is in "non-productive status." Such a situation does not excuse an employers obligation to continue paying these employees, the only exception being the employers decision to terminate the employment of those affected.
3. Can H1B employers furlough H1B employees? If so, what are the requirements?
In the normal course of business, an H-1B employer may furlough H-1B employees - effectively "benching" them. A furlough does not suspend the employers obligation to pay employees their normal salaries for the entire period of the furlough. Subject to applicable state and federal law (including the DOLs new Families First Coronavirus Response Act), employers may require their furloughed employees to use their accrued paid time off (PTO). This, of course, still means employers must pay their employees for the time they are off work. The furlough may afford employers time to restructure employment opportunities within their business, including creating or consolidating new projects to assign displaced workers to avoid layoffs.