Non-Immigrant Related Questions

I am a foreign national was admitted into the U.S. on a nonimmigrant (guest worker) visa, and my status is about expire. I am currently unable to return to my home country. What can I do?

The U.S. Citizenship and Immigration Services (USCIS) affirms that a foreign national will be out of status and begin to accrue unlawful presence, if the foreign national stays beyond the period of stay granted on their I-94 record. However, the USCIS has discretion in special situations and may forgive periods in which the foreign national failed to maintain nonimmigrant status. See the following: https://www.uscis.gov/humanitarian/special-situation. It is recommended that a foreign national who is about to have their nonimmigrant status expire, and is unable to depart the U.S. because of the COVID-19 pandemic, file an application or petition with the USCIS to extend their status or change their status to another nonimmigrant category in order to avoid accruing unlawful presence. For example, a foreign national who is unable to depart the U.S., and whose nonimmigrant status is about to expire, may change their status to the B-2 category. Foreign nationals who have the potential of falling out of status should contact an attorney for guidance.

Are foreign nationals currently able to apply for nonimmigrant visas at a U.S. embassy or consulate or be issued a nonimmigrant visa or immigrant visa at a U.S. embassy or consulate?

No. The U.S. Department of State (DOS) has suspended all routine immigrant and nonimmigrant visa processing at all U.S. embassies and consulate around the world until further notice, as a result of the COVID-19 pandemic. At this point in time, it is unknown as to when routine visa processing will resume. Our office is continuing to monitor the situation, and will provide more information as it becomes available.

May foreign nationals who are currently outside of the U.S. still eligible to have a nonimmigrant visa petitions filed on their behalf or use a valid nonimmigrant visa to enter the U.S.?

Yes. Foreign nationals may be sponsored for a nonimmigrant classification (Example: H-1B, L-1, O-1, E-1, E-2, etc.) by having a nonimmigrant visa petition filed with the USCIS on their behalf. In addition, a foreign national that is already in possession of a valid nonimmigrant visa may still use it to apply for admission to the U.S. at a port of entry with U.S. Customs and Border Protection (CBP).

I work in the U.S. as an H-1B nonimmigrant, my employer no longer has full-time work available for me due to COVID-19, but she or he wants to retain me. What are my options?

U.S. employers have a number of options, if they no longer have full-time work for their H-1B nonimmigrant worker due to COVID-19. The U.S. employer may file an amended H-1B petition with USCIS to change the foreign national's employment from full-time to part-time. A new Labor Condition Application (LCA) would need to be filed with the U.S. Department of Labor (DOL) to document the part-time employment. Once the LCA is certified, an amended H-1B petition would need to be filed with the USCIS. (Note: Nonimmigrant workers in the H-1B1 and E-3 categories would also need new LCAs filed with the DOL and amended petitions filed with the USCIS to document the part-time employment.)

Employers may place their H-1B, H-1B1, and E-3 nonimmigrant workers in "non-productive status" as long as the employer continues to pay the nonimmigrant worker during the non-productive status. Failure to pay workers in the H-1B, H-1B1, and E-3 categories may result in LCA violations that could subject the U.S. employer to fines and the payment of back wages to the worker(s).

H-1B, H-1B1, and E-3 nonimmigrant workers may also use their paid time-off (PTO) in order to maintain status. However, since most nonimmigrant workers are not given weeks or months of PTO, this is unlikely to serve as a long-term solution during the COVID-19 pandemic.

U.S. employers that employ workers in other nonimmigrant categories, such as the L-1, O-1, E-2, etc. may want to consider filing amended petitions to document changes in employment. Whether an amended petition is required to be filed with the USCIS for these workers depends on the particular facts and circumstances of the case. It is recommended that U.S. employers that no longer have full-time work available for their nonimmigrant workers, and wish to try to retain their nonimmigrant workers, contact an attorney for guidance.

I work in the U.S. as a nonimmigrant, my employer has had to terminate my employment due to a lack of work. What are my available options?

Nonimmigrant workers who have had their employment terminated may try to change their status to the B-2 (visitor) category. The maximum period of B-2 status that may be requested is six (6) months. In order to change status to the B-2 category, the foreign national may file an Application to Change Nonimmigrant Status (Form I-539) with the USCIS. Dependent (spouse and children under 21 years of age) family members are eligible to change their status to the B-2 category, as well.

If the nonimmigrant worker is married to a foreign national who is maintaining valid H-1B, L-1, or O-1 status, the nonimmigrant worker spouse who has recently lost their job, may have the option to change their status to the H-4, L-2, or O-3 categories, depending on the nonimmigrant status of their spouse. If a spouse is maintaining valid F-1 status, the nonimmigrant worker spouse who has recently lost their job, may be able to change their status to the F-2 category.

Another option would be for a foreign national to find a new U.S. employer willing to sponsor them for employment. The new U.S. employer would need to file a new Petition for Nonimmigrant Worker (Form I-129) with USCIS. If the foreign national was in H-1B status with a previous U.S. employer, and a new U.S. employer is willing to sponsor the foreign national for the H-1B category, the foreign national may begin work as soon as the Form I-129 petition is received at USCIS. (Note: If the new U.S. employer's Form I-129 petition indicates the foreign national is changing status to another nonimmigrant category, the foreign national will need to wait for the Form I-129 petition to be approved before beginning work with the new U.S. employer.)

A foreign national in H-1B, H-1B1, E-3, L-1, O-1 status may apply for a one-year Employment Authorization Document (EAD), if the following requirements are met:

  • The foreign national is the beneficiary of an approved EB-1, EB-2, or EB-3 Form I-140 petition;
  • The foreign national's priority date is not current;
  • The foreign national can demonstrate a compelling circumstance that justifies the issuance of the EAD, or the foreign national is able to show his or her priority date is one (1) year or less from becoming current.

In addition, the following requirements must also be met:

  • The foreign national must file an Application for Employment Authorization (Form I-765) and pay the Form I-765 filing fee.
  • The foreign national must be in one of the above nonimmigrant statuses when the Form I-765 application is filed.
  • The foreign national may not have a felony conviction or two misdemeanor convictions in order to be eligible for the one-year EAD.
  • The foreign national is in a "period of authorized stay" during the validity period of the EAD. (Note: If foreign national's priority date becomes current while in the U.S. in connection with their employment-based U.S. Green Card case, the foreign national would not be able to file a Form I-485 application. The foreign national would need to complete the final step of the U.S. Green Card process overseas through consular processing. In addition, the foreign national would not be able to be placed into any type of nonimmigrant status while in the U.S. In order to be placed into a nonimmigrant status, the foreign national would need to depart the U.S. and re-enter the U.S. with a valid nonimmigrant visa.)
  • The foreign national is not eligible to apply for an Advance Parole document.
  • The one-year EAD period begins from the date of approval.
  • Compelling Circumstances: What is considered a compelling circumstance is to be determined on a case-by-case basis. USCIS has discretion with respect to determining whether compelling circumstances exist, based on the totality of the circumstances. The comments to the final rule provide four examples of compelling circumstances, which are the following: (1) Serious illness or disability to the principal applicant or dependents; (2) Employment retaliation; (3) Other substantial harm to the principal applicant; (4) Significant disruption to an employer. These examples are non-exhaustive. Loss of employment, alone, is not considered to be a compelling circumstance. Other examples that are not considered to be compelling circumstances, include the following: child aging-out, dissatisfaction of salary or current position, home ownership, professional career development of dependents, extraordinary wait, pursuit of advanced academic degree, approval of a National Interest Waiver petition, pursuit of a start-up business, etc.
  • Derivative family members may apply for a one-year EAD. The one-year EAD may not exceed the validity period of the one-year EAD for the principal applicant.
  • The foreign national must continue to show a compelling circumstance when extending the EAD in one-year increments, unless the foreign national is able to show their priority date will become current within a one-year period. (Note: The compelling circumstance for the one-year EAD extension does not have to be the same compelling circumstance as the initial one-year EAD.)
  • Note: The one-year EAD, based on an approved Form I-140 petition, is designed to be a stop-gap measure, intended as a form of relief for the foreign national pursuing lawful permanent residence, allowing the foreign national to remain in the U.S. and continue working, who might otherwise have had to abruptly stop working and depart the U.S. It is not recommended to be pursued, unless there are no other options to keep the foreign national in the U.S. and working.

H-1B-Specific Questions

What does a U.S. employer need to do if moving an H-1B worker to a new work location not listed on the H-1B petition and/or LCA (Example: H-1B worker teleworks from home), but within the same area of intended employment listed on the LCA?

The U.S. Department of Labor's (DOL) Office of Foreign Labor Certification (OFLC) has confirmed that moving an H-1B worker to a new worksite location within the same area of intended employment does not require an amended H-1B petition or LCA to be filed, if the terms and conditions of employment have not changed for the H-1B worker. Under current law, the LCA or LCA notice must be posted (physical hard copy posting or electronic posting) at the new work location before the H-1B worker begins work at the new worksite location. The DOL has recognized that the COVID-19 pandemic may have resulted in serious disruption to U.S. employers. As a result, DOL has indicated that posting of the LCA or LCA notice will still be considered timely, even if the H-1B worker began work at the new worksite location before the LCA or LCA notice was posted, provided the LCA or LCA notice is posted within 30 calendar days after the H-1B worker begins work at the new worksite location. If a U.S. employer is now having an H-1B worker telework from their home as a result of the COVID-19 pandemic, the U.S. employer should post the LCA or LCA notice within 30 days of the start of the H-1B worker beginning to telework from their home. The LCA or LCA notice may be physically posted at the H-1B worker's home in two conspicuous places in order to satisfy the LCA notice requirement.

What does a U.S. employer need to do if moving an H-1B worker to a new work location not listed on the H-1B petition and/or LCA, and outside the area of intended employment, as a result of COVID-19 pandemic?

The DOL affirmed that the short-term placement provisions within the DOL's LCA regulations are applicable in the above scenario. Chapter 20, Section 655.735 of the Code of Federal Regulations (CFR) states H-1B workers may be placed at worksites not listed on an LCA on a short-term basis, if certain conditions are met. Under this regulation, an H-1B employer may assign an H-1B worker at any worksite not listed on the LCA, as long as the total number of workdays at the other worksite, or a combination of worksites, in a one-year period (i.e., January 1st through December 31st), does not exceed 30 days. If the H-1B employer elects to assign the H-1B worker to a worksite not listed on the LCA for a period not to exceed 30 days, the H-1B employer must:

  1. Continue to pay the H-1B worker the wage rate listed on the LCA;
  2. Pay the worker the cost of lodging for both workdays and non-workdays;
  3. Pay the worker the actual cost of travel, meals, and incidental expenses for both workdays and non-workdays;
  4. Make sure there is no strike, lockout, labor dispute, etc. in the same occupation as the H-1B worker's occupation at the worksite the worker will be placed;

5) Comply with all LCA requirements (i.e., Notice posting requirement, confirmed no strike or lockout at location listed on LCA, Confirmed employment of H-1B worker will not adversely affect working conditions of others at work location on LCA, etc.) to date.

However, there is an exception to this rule. Under this exception, the H-1B worker may be placed at a worksite, or a combination of worksites, in a one-year period, for up to 60 days, if the following additional requirements are met:

  1. The H-1B worker maintains an office, or work station, and maintains a dedicated telephone line(s) at the permanent work location listed on the LCA;
  2. The H-1B worker spends a substantial amount of time at the permanent worksite in a one-year period; and
  3. The H-1B worker's residence is located near the permanent worksite listed on the LCA, and not in the area of the short-term worksite (Note: Evidence that would establish a residence near the permanent worksite would be lease agreement, bank account statement, driver's license, etc.)

Please note that 20 CFR 655.735 prohibits the short-term placement of an H-1B worker, if any of the following exist/occur:

  1. The H-1B employer has a certified LCA for the occupation at that work location.
  2. The H-1B worker has just entered the United States to begin his or her H-1B employment. (Note: The regulation indicates the initial assignment given to the H-1B worker who has just entered the United States, must be the work location specified on the LCA.)
  3. H-1B employer must not continuously rotate H-1B nonimmigrants on short-term assignments in a manner that would defeat the short-term placement option, which is to provide the H-1B employer with some flexibility to afford enough time to obtain a new LCA for the worksite the H-1B worker will be employed.

Once the 30 or 60 workday limit has been reached, the H-1B employer is required to file a new LCA with the DOL and amended H-1B petition with the USCIS to document the new work location.

Green Card Applicant Related Questions

Does President Trump's proclamation of April 22, 2020 prevent foreign nationals already present in the U.S. from applying for a U.S. Green Card or pursuing an immigrant visa overseas?

No, foreign nationals who are currently residing in the United States may continue to pursue an Application to Register Permanent Residence or Adjust Status (Form I-485) or an Immigrant Visa Application (Form DS 260) overseas. The proclamation only prohibits foreign nationals for a 60-day period, who are outside of the U.S., from using an immigrant visa (issued on or after April 24, 2020) to enter the U.S. Those foreign nationals issued an immigrant visa prior to April 24, 2020, may use the immigrant visa to enter the U.S. In addition, President Trump's recent proclamation does not prevent foreign nationals with a valid nonimmigrant visa from using the nonimmigrant visa to apply for admission into the U.S.

I am currently in H-1B status and my U.S. employer is sponsoring me for a U.S. Green Card. Unfortunately, my employer terminated my H-1B employment due to a lack of work caused by the COVID-19 pandemic? However, my U.S. employer would still like to continue to move forward with my U.S. Green Card case. Is this possible?

Yes. The requirements that need to be met to sponsor a foreign national for a U.S. Green Card are different from the H-1B category. As long as the U.S. employer is able to show it has an intent to offer the foreign national a permanent, full-time at the time the U.S. Green Card is issued in the future, work available for the foreign national, and the ability to pay the offered wage described in the petition that the Green Card case is based, a foreign national may still be successful with the Green Card application process.. Please note that the USCIS may issue a Request for Evidence (RFE) in the future, requesting information with respect to the U.S. employer's intent to offer permanent, full-time employment; evidence of the availability of work for the foreign national in the future; and evidence of the ability of the sponsoring employer to pay the offered wage described in the petition to the foreign national.

I am the beneficiary of a prior approved Immigrant Petition for Alien Worker (Form I-140). The U.S. employer that filed my Form I-140 petition has had to terminate my H-1B employment due to COVID-19, and indicated that it will no longer sponsor me for a U.S. Green Card. What happens to the Priority Date of this prior approved Form I-140 petition?

As long as the Form I-140 petition is not revoked due to fraud or misrepresentation or government error, the foreign national would be able to transfer the priority date to any subsequently approved Form I-140 petition filed on the foreign national's behalf.

U.S. Citizen and Lawful Permanent Resident Questions

If I am a lawful permanent resident of the U.S. and am currently outside of the country, can I return to the U.S.?

Yes, American citizens and lawful permanent residents of the U.S. and their immediate families may return to the U.S. Please note that U.S. Customs and Border Protection (CBP) has established additional screening procedures as a result of the COVID-19 pandemic. If, upon arrival in the U.S., a person is symptomatic for coronavirus, she or he will be referred to the Center for Disease Control and Prevention (CDC) for a medical evaluation. Individuals not symptomatic may be required to self-quarantine in the U.S. for fourteen days.

What are the repatriation procedures for U.S. citizens, lawful permanent residents and their families?

Repatriation is administered by the Administration for Children and Families' Office of Human Services Emergency Preparedness and Response (OHSEPR) which is under the Department of Health and Human Services (DHHS). When activated by OHSEPR for an emergency repatriation incident, a state will execute its state emergency repatriation plan (SERP) to provide temporary assistance to returning eligible citizens at designated points of entry. American citizens who would like to inquire about eligibility may email USCitzReturn@iss-usa.org or call 1-800-458-6124.

Additional Related Questions

Are there any exceptions to the restriction barring foreign nationals who are outside of the U.S. from entering the U.S. under the Presidential Proclamation?

Yes. There are several exceptions, which include lawful permanent residents (Green Card holders), foreign nationals in the medical field (physicians, nurses, and other healthcare workers and their spouses and children) who are coming to the U.S. to perform work deemed essential to the fight against COVID-19. In addition, EB-5 immigrant investors, immigrant spouses and children of US citizens, prospective adoptees, individuals who would further law enforcement objectives, members of the Armed Forces and their spouses and children who are immigrants, Iraqi/Afghani Special Immigrants, foreign nationals seeking special SI or SQ classifications, and foreign nationals whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, are also permitted to apply for immigrant visas (IV) even if they are outside of the United States.

Besides the Presidential Proclamation issued on April 22, 2020, what other restrictions have been put in place by the U.S., resulting in the inability of foreign nationals to enter the U.S.?

Currently, the United States has several travel restrictions in place. In March 2020, the U.S. suspended the entry of foreign nationals from China, Iran, Europe (the Schengen countries), the United Kingdom, and Ireland. On March 20, 2020, the U.S. closed both its northern (Canadian) and southern (Mexican borders) to all nonessential travel until May 20, 2020. This closer may be extended. Commercial activity and essential trade/travel is not affected by the border closure. However, what is deemed essential travel at land ports of entry depends on the facts and circumstances. It is recommended that individuals consult an attorney, if attempting to enter the U.S. at a port of entry based on the position that their travel into the U.S. is considered essential travel.

Is the USCIS still conducting biometrics appointments, Green Card interviews, Naturalization interviews, etc. at USCIS district offices?

On April 1, 2020, USCIS suspended routine in-person services and closed their district offices. Currently, they are scheduled to re-open on June 4, 2020. However, the June 4 date is a second extension of the original scheduled re-opening date, and it is possible that the USCIS may extend this again. Foreign nationals that have scheduled in-person appointments, such as biometrics appointments and interviews, will receive a notice with the new time, date, and location. Likewise, Green Card applicants who have been scheduled for an interview during this period in connection with their citizenship applications will have their interviews rescheduled.

My visa petition was issued a Request for Evidence (RFE), and the due date is quickly approaching. Do I have additional time to respond to the RFE, because of the COVID-19 pandemic?

Maybe. Due to the COVID-19 pandemic, the USCIS has announced flexibilities to assist applicants and petitioners who are responding to RFEs, Notices of Intent to Deny (NOID), Notices of Intent to Revoke (NOIR). The USCIS will consider a response to the any of the above timely, if received within 60 calendar days after the due date indicated on the RFE or notice. This flexibility is applicable to all NOIDS, NOIRs, and RFEs dated between March 1, 2020 and July 1, 2020, inclusive.

Originally published May 12, 2020

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.