H-1B visa holders and COVID-19

With unemployment skyrocketing in the United States, foreign nationals are at risk of losing their visa status. Normally, those with H-1B status who have long-pending green card cases in the EB-2 or EB-3 category are eligible to renew their status multiple times while waiting to obtain their green cards. However, due to the COVID-19 pandemic, many businesses have been closed indefinitely, putting tens of thousands of foreign employees at risk of losing their status. These employees must work in the sponsored position and continue to earn the required wage for the duration of their H1B status. If an H-1B beneficiary loses his or her job and is unable to find a new employer to file a transfer within 60 days, the beneficiary and his or her family dependent family members are not legally permitted to remain in the U.S. Unless an employer terminates the H1B employee in a bona fide manner (that includes payment of one-way transportation to the home country), the employer must continue to pay the foreign national the salary listed in the labor condition application during any furlough. If a foreign national exhibits symptoms or tests positive for COVID-19, the employer may assign vacation or sick leave requiring the employee to quarantine while not affecting their pay and status. If the employee continues to work from home or a new location not within normal commuting distance of the address indicated on the LCA, submission of a new LCA and possibly an amended petition is required. See https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs62J.pdf.

The Department of Homeland Security published their response to the pandemic on the USCIS website to guide the next steps for nonimmigrants. This includes options such as applying for an extension of stay in a timely manner, allowing flexibility for late applications of an extension/change of status due to extraordinary circumstance, and flexibility in providing an additional 30 days for the visa waiver program. See https://www.uscis.gov/about-us/uscis-response-covid-19. Currently, it is unclear what beneficiaries can do if they have been laid off due to the pandemic, although they can apply for a change of status to B-1 or B-2 visa during the 60-day grace period. However, it is expected that such applicants will return home when it is practicable to do so.

UPDATE 4/22/2020: Late this afternoon, President Trump issued a Proclamation entitled “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.” The Proclamation suspends entry for 60 days of those entering the U.S. from abroad as U.S. permanent residents. It does not apply to nonimmigrant visa holders, such as H-1Bs, L-1s, and other temporary visa categories, nor does it pertain to current U.S. permanent residents. This Proclamation also does not affect individuals who are in the United States applying for adjustment of status to lawful permanent resident. The entry of affected individuals into the United States under this Proclamation is suspended as of 11:59 p.m. Eastern Daylight Time on April 23, 2020 for a period of 60 days with an option to be continued “as necessary.” The Proclamation also directs the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State, to review nonimmigrant programs and recommend other measures appropriate to stimulate the United States economy and ensure prioritization, hiring, and employment of United States workers. Such recommendations are to be made to the President within 30 days of the effective date of the Proclamation.

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Sheila Starkey Hahn

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Ms. Starkey Hahn has devoted her entire legal career to the practice of immigration law. She has helped thousands of satisfied individuals and companies achieve their immigration goals by providing trustworthy and effective legal advice. Ms. Starkey…

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