U.S. to Open its Land and Sea Borders

DHS announced today that, following guidance from the CDC and other public health experts, the United States will allow non-essential travelers who have been fully vaccinated for COVID-19 and have proof of vaccinations to enter the country via land and ferry ports of entry (POEs) across the U.S. border.

The new policy will be implemented in two phases:

1) Starting in November, fully vaccinated travelers from Mexico or Canada will be allowed to enter the United States at land and ferry POEs for non-essential reasons. Travelers will be required to provide proof of vaccination. In this phase, individuals who have not been fully vaccinated for COVID-19 will not be allowed to travel for non-essential purposes from Canada and Mexico into the United States via land and ferry POEs. 

2) Beginning in early January 2022, the United States will allow all inbound foreign national travelers crossing U.S. land or ferry POEs to enter, whether for essential or non-essential reasons, with proof of full vaccination for COVID-19.  According to DHS, this approach will provide ample time for essential travelers such as truckers, students, and healthcare workers to get vaccinated.

The U.S. has closed its land and ferry ports of entry since the breakout of COVID except for essential travelers.  The new policy will make leisure travel from Canada and Mexico once again possible and prove to be timely during the holiday season.  

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

US Will Accept Proof of Vaccination and Negative COVID Test Results in lieu of Travel Ban

Yesterday, the White House announced that it plans to cancel the blanket regional travel bans for visitors from China, Iran, the Schengen Area, U.K., Ireland, Brazil, South Africa, and Inida.  Instead, international travellers coming to the United States will be required to present proof of full COVID vaccination and proof of a negative test taken within three days of travel.  The new policy will be effective in early November 2021.

Instead of banning international travel based on countries of origin, the U.S. will focus on individual visitors' health profile under this new policy.

At this point, the White House has not decided which COVID vaccines that it will accept as proof of full vaccination. The CDC will make that decision later on.  

There are some limited exceptions to the vaccination/negative test requirements includng children, COVID-19 vaccine clinical trial participants and humanitarian exceptions for people "traveling for an important reason and who lack access to vaccination in a timely manner." It is expected that requests for exception will be granted sparingly. 

The U.S. has also extended the masking requirement through January 18, 2022.  At the same time, CDC will also implement more stringent pre-departure and post-arrival testing requirements.  Travellers must be prepared to spend longer time at the airports. 

Additionally, CDC will also issue a Contact Tracing Order.  The Order will require airlines to (1) collect comprehensive contact information for every passenger coming to the United States and (2) to provide that information to CDC upon request, and (3) to follow up with travelers who have been exposed to COVID-19 variants or other pathogens.

Under this new policy, travellers will be required to present proof of vaccination status before boarding a flight bound for the United States.  The specific type of proof has not been determined yet. 

For Americans coming back from foreign travel, they will be requried to provide proof of a negative test result taken within one day of their departure prior to boarding an airplane.  They will also be required to provide proof that they have purchased a viral test to be taken after arrival.

In sum, the new policy will allow more international travellers to travel to the United States for business and personal reasons.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

COVID Vaccinations Required for Green Card Applicants Starting 10/1/2021

Starting October 1st, 2021, applicants for U.S. permanent resident status ("green card") within the United States must show proof of their COVID-19 vaccinations. Some limited exceptions apply to this general requirement.  

A foreign national may apply for U.S. green card through the legal process of adjustment of status within the United States.  As part of the application process, the applicant must submit a medical examination report with their Form I-485, Applicant to Adjust Status.  This medical report, entitled "Report of Medical Examination and Vaccination Record" or Form I-693, must be prepared by a qualified civil surgeon under the guidelines of the CDC.  

Recently, the CDC provided updated guidance for civil surgeons related to COVID-19 vaccine requirements for individuals applying for adjustment of status. The guidance specifies that adjustment applicants who receive their medical exams on or after 10/1/2021 must provide proof of their COVID vaccinations, in addition to other existing required vaccinations.  

This change will only affect an applicant who completes Form I-693, Report of Medical Examination and Vaccination Record, on or after October 1, 2021. If Form I-693 is completed before October 1, 2021, the COVID-19 vaccine will not be required.

Under the revised CDC guidance, the Civil Surgeon must physically inspect and confirm the applicant's documentation that they have received all appropriate doses of the COVID-19 vaccine. Examples of such documentation includes a vaccination record card and a copy of the applicant's medical chart.  Self-reported claims of vaccinations without written documentation will not be accepted. The Civil Surgeon must complete the I-693 form and and document the COVID-19 formulation and the number of doses given.

The are several exceptions to this requirement including applicants (1) who are too young to receive the vaccine. (2) who have a valid medical reason not to receive the vaccine, (3) who do not have access to one of the approved COVID-19 vaccines in their countries.  An applicant may also apply for an individual waiver based on religious or moral convictions with USCIS.

Finally, CDC also clarifies that COVID vaccinations can now be given at any time, without regard to the timing of other vaccinations.  CDC has provided example timelines for the Pfizer-BioNTech, Moderna, and Janssen (Johnson & Johnson) COVID-19 vaccines.  It is unclear if other types of COVID vaccines will be accepted by USCIS at this point.  

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

U.S. and Other Countries Imposed Travel Restrictions and Warnings Regarding India

On April 21, the US State Department issued a stern advisory warning against travel to India: "Do not travel to India due to COVID-19, crime, and terrorism."  

The Centers for Disease Control and Prevention (CDC) has issued a Level 4 Travel Health Notice for India due to COVID-19.   A Level 4 notice means that there is a very high level of COVID-19 in the country.  

U.S. citizens who must travel to India are strongly urged to get fully vaccinated before travel.  They should also continue to take personal health safety measures to protect themselves, including practicing social or physical distancing, cleaning hands with soap/hand sanitizer, wearing masks, and avoiding crowded areas with poor ventilation.  

Additionally, the CDC strongly recommends that travelers get flu shots before travelling to India to reduce the need to access the already overburdened local health system at this time.  Finally, U.S. citizens should continue to obey measures introduced by Indian officials designed to mitigate further outbreaks of the pandemic. 

In addition to COVID, the States of Jammu and Kashmir (except the eastern Ladakh region and its capital, Leh) are also dangerous destinations due to terrorism and civil unrest.  There is also potential for armed conflict within 10 km of the India-Pakistan border, according to the State Department.

The State Department also warned that violent crime, such as sexual assault, has occurred at tourist sites and in other locations in India.  Finally, terrorist attacks may also occur with little or no warning, targeting tourist locations, transportation hubs, markets/shopping malls, and government facilities.

Travelers should also note that the U.S. government has limited ability to provide emergency services to U.S. citizens in rural areas from eastern Maharashtra and northern Telangana through western West Bengal.  U.S. government employees must obtain special authorization before they can travel to these areas.

Although U.S. visa services have been slowly been resumed, some Consulates including Mumbai, New Delhi, Chennai have cancelled most immigrant and nonimmigrant visa appointments from mid-April  onward due to the pandemic.  Applicants should contact their location Consulate to confirm their appointments. 

Other countries including Germany, Australia, France, etc., have also imposed restrictions against travel from India.  Hong Kong has prohibited passenger flights from India, Pakistan, and the Philippines from landing in Hong Kong for 14 days as of April 20, 2021. Italy and Singapore have has restricted entry of travelers who were present in India during the last 14 days.  

Travelers to and from India should pay special attention with the travel plans.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

State Department Guidance On DV-2020 Applications

The U.S. Department of State provided some guidance regarding the Diversity Visa 2020 application process on 09/09/2020 after a D.C. federal court held that Diversity Visa 2020 winners should have their visa applications processed as soon as possible before September 30th.

The State Department stated that DV-2020 applications may be processed in embassies and consular posts according to the local health conditions and resources. However, if a local consular office is not able to process cases due to local health conditions and resource constraints, an applicant may request his/her case be transferred to another embassy or consulate by contacting that new post directly. 

The State Department will prioritize the processing of applications as follows:

• Individuals who were named plaintiffs in Gomez v. Trump and its companion cases;

• Applicants who had already been interviewed who seek reissuance or to overcome a prior refusal;

• Applicants who were scheduled for appointments in March, April, or May and whose appointments were cancelled due to the COVID-19 pandemic and worldwide suspension of routine visa processing;

• For posts that have additional capacity to process applications and are not exhausted by the three categories above, applicants whose cases are pending with the Department’s Kentucky Consular Center.

Visas Can Be Issued; Entry Not Allowed Unless Exempted from Trump's Proclamation

Although DV-2020 applicants may be issued an immigrant visa under the court order, DV visa recipients are still subject to Presidential Trump's Proclamation 10014.  Hence, they would not be able to enter the U.S. until after the expiration date (12/31/2020) of the Proclamation, unless they meet one of the exceptions.  

If a DV-2020 applicant’s visa expires before the expiration date of 12/31/2020 of Proclamation 10014, they will be unable to enter on that visa.  More importantly, those applicants would not be issued a new visa after 09/30/2020 under the law. 

DV Applicants Present in the U.S. 

If you are a DV-2020 winner that were in the U.S. or held a valid immigrant visa, on April 23, 2020, you are exempt from PP 10014. Applicants who held DV visas on April 23 but were unable to travel and have since had their visas expired, may be reissued a DV visa before the September 30, 2020 deadline.

Travel Restrictions May Also Bar DV Applicants Entry

Further, DV applicants subject to President Trump's COVID Proclamation on travel restrictions (Brazil, Ireland, U.K., Schengen Zone countries, Iran, and China) may be interviewed and processed, but applicants who have been physically present in the affected region during the preceding 14-day period will not be issued an immigrant visa, unless excepted.

Broadened National Interest Exception for Qualified H-1B/ L-1 Visas

The Department of State (DOS)  announced further relaxations on 8/12/2020 regarding President Trump's ban on H-1B/L-1 visas. 

One major exception is allowing H-1B and L-1 applicants who "resume ongoing employment in the U.S. in the same position with the same employer and visa classification" to be issued an H or L visa. This typically covers H-1B and L-1 employees who are extending their work authorization with the same employer in the same position. 

What about the H-1B workers who are applying for new employment, changing position or employer, and L-1A applicants who are establishing a new office in the U.S.? 

Alternatively, an H-1B applicant may be eligible for a visa if TWO of the following criteria are met:

1) The employer has a continued need for the services or labor to be performed by the applicant in the U.S. 

Consulate officers will look at Labor Condition Applications (LCAs) to determine if this criterion is met. If an LCA is approved during or after July 2020, it is an indicator itself showing that the employer still needs the H-1B worker. For applicants with an LCA approved before July 2020, Consulate Officers need to look that the complete visa application to determine if the continuous need from the U.S. employer is established. However, if the essential functions of the H-1B position can be done from outside the U.S., this criterion is not met regardless of when the LCA was approved. 

2) The U.S. employer is meeting a critical infrastructure need and the H-1B worker will provide significant and unique contributions to the employer. 

This is a two-prong test. First, the H-1B worker must either in a senior-level position, or provide a service that is unique and vital to the management and success of the employer, or has special qualifications that will provide significant and unique contributions to the U.S. employer. 

Critical infrastructure sectors includes chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems. 

3) The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage as provided in the LCA at least 15 percent. 

4) The applicant's education, training and/of experience shows unusual expertise in the specialty occupation in which the applicant will be employed. 

According to the DOS, the applicant can be a doctorate or professional degree holder, or have many years of relevant work experience to demonstrate the advanced expertise. 

5) Evidence to show that the denial of visa under the Presidential Proclamation will cause financial hardship to the U.S. employer. 

For L-1A applicants, a visa may also be issued when at least TWO of the following requirements are met:

1) Will be a senior-level level executive or manager;

2) Has spent multiple years with the company overseas, establishing a substantial knowledge and expertise of the company that cannot be replaced by a new employee within the company without extensive training that would cause the employer financial hardship; 

3) Will fill a critical business need for employer relating to a critical infrastructure need. 

For L-1B applicants, if they are not staying with the same employer and same position, they need to fulfill the following requirements before they are able to get a visa:

1) the applicant will provide significant and unique contributions to the U.S. employer; 

2) the applicant's specialized knowledge is specifically related to a critical infrastructure need; AND

3) the applicant spent multiple years with the company overseas, establishing a substantial knowledge and expertise of the company that cannot be replaced by a new employee within the company without extensive training that would cause the employer financial hardship; 

The broadened exceptions for H-1B and L visa applicants are positive news. But these exceptions present new requirements that are not easy to fulfill. The pandemic-related travel bans and delayed reopening of the worldwide U.S. Embassies and Consulate Offices are also making it harder for the foreign workers to go back to the U.S, even if they can benefit from these exceptions. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

USCIS Office Reopening Visitor Policy

USCIS offices have begun to reopen, but the pandemic is still ongoing. To minimize contagion, USCIS has announced that all visitors must wear a face mask/covering in their offices. Those that refuse to do so will not be allowed to enter. 

Other preventative procedures for office appointments are similar to what was announced in June. Applicants may only bring their attorney, an assistant for disability, or family members listed as dependents on the appointment notice. Minors are allowed one trusted adult with them. Interpreters are generally allowed but should be available by phone in certain cases. 

Naturalization ceremonies will only allow the citizen-to-be and any person assisting them with disability. This  means no family or friends can attend the actual ceremony. As always, anyone feeling sick or who has been around a sick person can and should reschedule as per their appointment notice and will not be penalized for doing so. 

Video interviews are also being rolled out slowly in different districts. 

Overall, while appointments have resumed, applicants and visitors must be prepared to comply with altered procedures. USCIS offices can deny entry to uncooperative people. It is in an applicant's best interest to follow these rules both for their own health and for the sake of their application.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

ICE Cancelled Exemption of In-Person Classes for F-1/M-1 Students

The historic COVID-19 global pandemic has impacted our daily life severely in the first half of 2020. People were ordered to stay home and employees were asked to work remotely. Schools also took actions to protect their students and faculties by hosting online classes.

For F-1 and M-1 foreign students, they were allowed to take online classes remotely in the spring and summer. Normally, they are only allowed to take no more than three credits of online classes.  However, the exemption will not be extended to the fall 2020 semester, according to a U.S. Immigration and Customs Enforcement's (ICE) announcement on June 6. 

Under the new policy, foreign students will not be allowed to remain in the U.S. during the fall semester unless part of their courses are taken in-person.  The sudden change of policy puts tens of thousands of foreign students in a very difficult situation.

Schools that Offer Online Classes only

For F-1 and M-1 students currently in the U.S., if their school decided to deliver all courses online, they would have to depart the country or transfer to another school that provides in-person classes. Foreign students who fail to maintain their lawful status may face severe consequences including deportation if their schools are moving to  the online-only mode.  Overseas students who are going to take all courses online in the fall would not be able to obtain a visa to enter the U.S. 

Schools that Offer Regular In-person Courses

For schools that plan to reopen and provide normal in-person courses, the foreign students need to follow the existing regulations. No more than one class or three credit hours online may be counted toward the full-time student requirement. It should be noted that, if a foreign student or his/her school change the mode of instruction mid-semester, and the student ends up taking a full course of study through online classes, he/she must leave the country or take alternative steps to maintain lawful status.

Schools that Adopt an "Hybrid" Method

Some schools are adopting a hybrid model during the pandemic crisis. They mix remote and in-person classes to provide more options to their students. Foreign students in these schools will be able to take more than one class or three credit hours online. For schools that plan to reopen in the fall and allow students to have both onsite and remote access to courses, DSOs must certify on the Form I-20 that (1) the student's program is not entirely online, (2) the student is not taking entirely online course load, and (3) the student is taking the minimum number of online courses required to make normal progress in their program. According to ICE, schools must finish updating and reissuing new I-20s for the fall semester to eligible students on or before 08/04/2020.

However, F-1 students in English language learning programs and M-1 students cannot benefit from this exemption as they are not permitted to take any online courses.

Travel Disruption / Health Hazards

This new guidance places thousands of foreign students, especially those who are present in the U.S., in a very difficult situation. The lack of international flights and travel bans make it very difficult, if not impossible, to go back to their home country even if they decided to leave. Closure of US Embassies and Consulates worldwide and President Trump's visa ban are also making it infeasible for students to apply for visas from abroad.  The new policy may also create health hazards in educational institutions as some universities could be induced to switch their teaching mode to "in-person" in order to accommodate international students under this new policy.

Alternative Solutions

During this uncertain time, it is very important for foreign students to keep in touch with their school and devise a plan regarding their legal status as early as possible.  Students should not hesitate to seek advice from school advisors and legal professionals if they are not sure about their options. There may be alternative solutions for international students to maintain their lawful status by, for example, changing to another non-immigrant status temporarily.  As usual, timing is critical here.  One must take actions before it is too late.  

The US Consulates are closed: What happened to my visa application?

Since March 22, 2020, the US Embassies and Consulates worldwide have suspended all visa services due to COVID-19.  As a result, many individuals' visa applications are stuck in limbo.  Intending immigrants who are sponsored by their employers and family members are surely affected by the shut down of consular services. Even those who just wish to get a short-term visitor or business visa to enter the US are equally out of luck.  With the virus situation worsening in America, there are no definite reopening dates scheduled for most US Embassies and Consulates. 

Visas Not Issued Yet

In the midst of these uncertainties, it is important to know where one stands in the visa application process.  For immigrants, if your case is still being processed by the National Visa Center (NVC), instead of worrying about when the consulate will reopen, you should focus on completing your visa applications and gathering all required civil documents and financial documents for submission.  These are prerequisites before you can be issued an immigrant visa.  If you have already received notification by NVC that your case is "documentarily qualified," it means that NVC processing has been completed and your case is ready for the consulate visa interview (pending a few final steps such as a medical examination). In this situation, there is not much you can do now except wait for the assigned US Consulate office to reopen.  Also make sure that you maintain your visa eligibility (See below).

Visas Have been Issued

What if your visa has already been issued?  Before the abrupt shutdown of the US Embassies and Consulates all over the world, thousands of visa applications had already been approved and visas had been issued. However, due to the travel restrictions imposed by many countries, including those by the US, these individuals with approved visas have not been able to enter the US.  By law, an immigrant visa can only be issued for a maximum of 6 months.

Hence, many immigrant visa holders now have expired or expiring visas in their passports.  The good news is that, the consulate officers have the discretionary authority to issue a new visa to an applicant, provided that the applicant continues to be eligible for the visa.  Hence, this group of visa applicants should examine their case to see if their statuses have changed or if documents need to be updated.  It is important to note that life events such as marriages and divorces could affect your eligibility under a particular visa classification. Also make sure that your documents such as passport and police clearance are not outdated.  When in doubt, one should consult with a qualified US attorney for more information.


Aging-Out Children

Immigrants with older children must also be extra careful about their children's status.  For visa categories such as Family 3rd or 4th, the dependent children may immigrate with the principal applicants before the age of 21.  If a child has already reached 21 or is aging out soon, he or she could lose eligibility to immigrate. A special law called Child Status Protection Act may be invoked to save the child's eligibility if certain legal requirements are met.  In general, close attention must be paid to cases with aging-out children.


Some Visa Appointments May Resume Soon

Even though the situation seems gloomy, there is hope in the horizon.  There were reports that some US Embassies and Consulates were planning to schedule visa appointments for non-immigrant visas such as H-1B, B-1/B-2, F-1, O-1, and L-1, including Belgium, London, Beijing and Guangzhou.  However, Trump's most recent visa ban in June may negatively impact these Consulates' plans. Even if an applicant gets a visa stamp in his/her passport, he or she is still subject to President Trump's visa ban for both immigrant and non-immigrant visas until at least the end of the year unless the person qualifies for a waiver or exemption.

Check if You Are Exempted from the Visa Ban

President Trump's visa ban is quite broad, covering all overseas immigration.  For non-immigrant visas, only H-1B, H-4, H-2B,  L-1A, L-1B, L-2, J-1 and J-2 are banned.  Hence, one may still apply for a B-1/B-2 or F-1 visa to enter the US, assuming the embassy or consulate involved is open. Moreover, there are a few exceptions to the ban: Individuals who are lawful permanent residents, spouses and children of US citizens, those who can provide temporary services essential to the US food supply chain, and other individuals whose entry will benefit the national interest of the US.  Hence, individuals who are in the health care field (e.g., nurses, technicians, researchers) and other essential areas of services may qualify for exemption. There is no strict definition. It depends on how we present the case to the US Consulate. If you believe you may qualify for exemption, see legal advice immediately. If you don't make a request, you will never know.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

How "Telehealth" and Missing Work Will Affect J Visa Healthcare Workers

If you are a J visa medical trainee/student completing your program during these rough times, you may be thinking of transitioning straight to working through a J-visa waiver. This waiver, through the Conrad 30 Waiver program, allows foreign medical graduates to forgo the J visa's 2 year residence requirement and gain H-1B status.

Qualifying medical graduates will have to work full-time, or 40 hours per week, to maintain their status. The ongoing Public Health Emergency, however, has made it difficult to travel to and carry out work. Thankfully, those that miss work due to the pandemic and the resulting "Public Health Emergency" will not lose their waiver and status. USCIS announced that workers that cannot work due to pandemic-related issues such as illness, quarantine, or travel restrictions, will not be charged with violating their contract.

USCIS and DoS (Dept. of State) also explained their stance on telehealth services. Telehealth refers to using electronic telecommunication means to render long-distance health services to patients. It is deemed an acceptable form of service, provided that the worker serve patients in a designated shortage area through their contracting facility (per their contract).

These provisions on full-time work and telehealth services will apply to periods between January 27, 2020 and the end of the Public Health Emergency.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

Trump to Suspend Legal Immigration for at least 60 Days

President Trump tweeted on 04/20/2020 that he intended to sign an executive order suspending immigration temporarily. Details of the executive order are not yet released.  Trump stated the suspension would last at least 60 days. Bloomberg news reported today that, based on a draft copy of the order,  the suspension will last 90 days and it applies to immigrants entering the US as legal residents. The draft order makes exception for individuals seeking jobs in food production, helping directly to protect the supply chain, farm workers as well as health care and medical research professionals.  High-skilled workers such as H-1B employees would not be banned outright but would have to provide updated certifications that their employment does not displace American workers.  Trump is expected to sign the final order soon.  Stay tuned.

Travel Restrictions with Canada & Mexico Extended Until May 21, 2020

Nonessential travel restrictions between US, Canada and Mexico will continue for another 30 days until May 21, 2020, according to an announcement by the Trump Administration yesterday. These restrictions were initially put in place on March 21, 2020, for 30 days. 

“Non-essential” travel includes travel that is recreational in nature.  Essential travel refers to transportation activities that will preserve support chains of essential items such as food, fuel and life-savings medicines. Daily travel between these countries to perform essential work is also allowed. 

Holders of US visas such as TN, F-1, H-1B, L-1, R-1, O, etc., are advised to refrain from traveling to Canada or Mexico to apply for visas.  Instead, they should file applications from inside the US to extend or change their status. 

U.S. Visa Sanctions on Countries Refusing to Repatriate

President Trump has issued an executive order aimed at countries denying repatriation to its citizens and residents currently in the United States.

The order mandates that countries that deny entry of citizens and residents or delaying it will trigger visa sanctions if U.S. efforts to control COVID-19 contagion are affected. It is not clear exactly what impeding U.S. efforts to control the pandemic means, though Trump states in the order that countries not allowing citizens/residents back is in itself a public health risk. The sanction plans will be put together within 7 days after learning of a violation. If the offending country accepts the denied or delayed resident/citizen back in, the sanctions will become null.

This is good news if you are a foreign national unable to go back to your country of citizenship or residence. The pressure from this order could be what allows you to get back home. Even if this is not the case and you remain stuck in the U.S., you still have options to extend your stay.

Options For Those Stuck in the U.S.

Is your visa expiring soon, but you are unable to leave the United States because of the pandemic? USCIS reminds foreign nationals that there are ways to remain legal if they are in this situation.  It should be noted that this is merely a pronouncement of existing provisions of the law. No new measures have been put in place. 

Extension or Change of Legal Status

The first is to apply to extend or change your current status before expiration. This option is available to most foreign nationals currently holding a nonimmigrant visa. If the application is timely and properly filed, then the applicant will not be in the country illegally while it is pending, even if the visa expires. Documentary proof must be provided to support the application to change or extend status. Where applicable, employment authorization will be automatically extended for up to 240 days after filing.  The employment must be previously approved and unchanged.  

Late Filing

If you filed your extension or change of status application too late, your application would normally be invalid. However, USCIS will excuse the late filing if you can prove that it was due to extraordinary circumstances out of your control. The COVID-19 pandemic fits this definition for many. Evidence can be submitted to USCIS, who will grant relief on a case-by-case basis.

ESTA - Visa Waiver Program

Another option is available for those that entered with visa waivers under the Visa Waiver Program. Normally, extensions are not allowed for these entrants. However, if the applicant can prove that an emergency necessitates it, a 30 day satisfactory departure period (extension) can be granted. Emergencies caused by the pandemic are included in this rule, decided under USCIS discretion. Those that already received the 30 day period but remain unable to leave the country may still receive another 30 days if USCIS evaluates it to be necessary.

Overall, foreign nationals whose travel plans are disrupted due to the crisis still have ways to take control of their situation. Many qualify for discretionary relief in the form of extensions to their stay  or excused late applications if they can show that extraordinary circumstances prevented them from complying.

If you or a relative is in such a situation, it is recommended that an immigration attorney is consulted for a professional evaluation of your options.

Visas Services for Medical Professionals Still Available

On April 8, 2020, the US Department of State announced that, despite the worldwide suspension of routine visa services, U.S. embassies and consulates will continue to provide "emergency and mission critical visa services" in certain situations, based on the resources of the local offices. 

Specially, visa services for medical professionals with an approved US visa petitions are encouraged to visit the website of their local American Embassy or Consulate for information regarding making emergency appointments. 

These include:

- Non-immigrant (I-129) or immigrant visa petition (I-140 with a current priority date)

- A certificate of eligibility in an approved exchange visitor program (DS-2019)

Medical professionals who can help treat or mitigate the effects of COVID-19 are encouraged to use these emergency services. 

For foreign medical professionals present in the United States, they may also file applications to extend or change their non-immigration visa status, such as J-1, H-1B, O-1, etc.  

J-1 Alien Physicians (medical residents) may consult with their program sponsor, ECFMG, to extend their programs in the United States.  Generally, a J-1 program for a foreign medical resident can be extended one year at a time for up to seven years.

The State Department reminds the public that the expiration date on a U.S. visa does not determine how long one can stay in the US.  It is the expiration date on the Form I-94 that controls the duration of stay:  https://i94.cbp.dhs.gov/I94/#/home.

Benefits Resulting From COVID-19 Exempt From Public Charge Rule

The ongoing COVID-19 coronavirus pandemic has complicated travel and immigration status for many foreign nationals. In addition, many have been forced to seek treatment and other benefits as a result of this crisis.

The recently implemented public charge rule, however, counts the use of public benefits against someone applying to extend or adjust their status. By this definition, treatment funded by Medicaid and certain benefits needed due to inability to work are included. Worryingly, this could mean that seeking treatment and other benefits now would be a detriment to those applying to change or adjust status in the future.

Thankfully, this will not be the case for benefits received as a result of COVID-19. USCIS has announced that receipt of public benefits for necessary medical treatment, testing, and prevention against COVID-19 will not count against applicants in the future.

Those needing benefits after containment efforts such as shutdowns of their school or office will also not be judged negatively. This also applies to those in areas with quarantine measures imposed due to the virus. The applicant can submit a statement with a future application explaining how they were affected by such measures during the pandemic. He/she should also provide evidence to support their statement.

Overall, taking public benefits now for treatment or as a result of controlling contagion will not affect green card or status extension applications. As shown by USCIS' rule, the need to suppress this crisis supersedes the public charge analysis. Any foreign national hesitating to receive aid due to the public charge rule can go ahead and prioritize their health during this difficult time.

COVID-19: Maintaining Visa Status

For many foreigners present in the US, COVID-19 brings not only health and safety concerns but also worries about their immigration or visa status. For example, a client's scheduled flight to depart the US by the end of April was cancelled due to traffic restrictions imposed by the government of her home country. Despite her best efforts, the next flight that she can book for departure is scheduled for mid-May.  Meanwhile, her I-94 visa status is expiring in early May. She is afraid that her overstaying in the US will affect her ability to apply for visas in the future.

Importance of Following the Rules

The travel restrictions of government in different countries and cancellation of many flights by airlines have disrupted the travel plans of many foreign visitors, students and workers in the US.  Closure of business offices and schools has also made it difficult for international students and H-1B workers to study and work according to the regulations.  Despite these changes and disruptions, it is very important for them to try to follow the rules of their visa programs as much as possible.  Generally speaking, one should assume that the rules still apply unless there is a specific exemption announced by DHS.

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Some Rules are Relaxed 

USCIS has announced some policy changes in light of COVID-19.  For example, they have extended the period to respond to Requests for Evidence (RFE) and Notices of Intent to Deny (NOID) issued between between March 1, 2020 and May 1, 2020.  Regarding in-person appointments, USCIS initially excused applicants' absences if they were sick. Now all routine in-person services and appointments are cancelled until at least May 3rd.

USCIS has also announced that receipt of public benefits for necessary medical treatment, testing, and prevention against COVID-19 will not count against applicants in immigration petitions including green card applications.

AILA has filed a lawsuit requesting DHS and USCIS to toll the deadlines of all immigration-related applications including requests to extend and change status, and to extend the all EADs until the pandemic is over. However, unless and until a court decision is made, the existing rules still apply. 

What if I cannot Follow the Rule?

There are situations in which a person cannot follow the rules even if they try hard. Like my client, some visitors or students may not be able to leave the US before their visa status expires because of travel restrictions.  Inbound restrictions are equally problematic.  For instance, China has effectively banned most of the outbound flights to other countries since early March, making it almost impossible to travel to the US.  Another client, a lawful permanent resident of the US, is stuck in China when his green card is expiring soon.

These individuals should document everything regarding these events and circumstances that are beyond their control.  For example, they should keep their flight itineraries, booking confirmation, cancellation notices by airlines, travel restrictions imposed by governments, etc.  For foreign students, they should keep their school DSO updated of any changes or issues regarding their status in writing. Notices regarding conversion to online classes (for F-1 student) or teleworking (H-1B workers) should also be kept.

In the future, these documents can be used to explain their failure to follow the normal requirements of their visa program.  For example, if an F-1 student failed to leave the US before his 60-day grace period after completion of his academic program, he could be denied another visa in the future.  If so, he can provide documents regarding his attempts to book flights or cancellation of flights by airlines as proof that his violation was not intentional.

Beware of the Rumors
Finally, because the US government policies change on a daily basis, it is very important for foreign nationals to obtain correct and updated information.  After the outbreak of the pandemic, there are many rumors circulating in the internet; many scammers are also taking this opportunity to use fear and misinformation to trick the public especially the immigrant communities.  Hence, one should be very careful in discerning information. When in doubt, one should contact a licensed and experienced immigration attorney for advice and guidance.

H-1B Employer Obligations Under COVID-19

COVID-19 has abruptly changed our way of life.  Employers are reminded that their obligations under the terms of the H-1B visa program including the obligation to pay the required wages continue to exist.  The following are some Q&As regarding this issue:

1.  Do the terms and conditions of the H-1B employment still apply in light of the COVID-19 pandemic?
Yes, the terms and conditions specified in the Labor Condition Application (ETA 9035) and the H-1B petition still apply in general unless exempt by the regulation or the government.

2.  Does an employer's obligation to pay H-1B employees the required wage continue to exist in light of the government's shelter-in-place policy?
Generally speaking, an employer must continue to pay H-1B employees according to the terms of the LCA.  There are special rules governing the obligation to pay for non-productive hours of the employee (see below.)

3.  Can the employer stop paying the employee if there is insufficient work?
If an employee becomes non-productive due to insufficient work, the employer must pay the employee the normal wages according to the LCA.  "Benching" an employee or failing to pay the required wages for non-productive hours is not permitted by law. 

4. Are laid-off H-1B employees eligible for state unemployment benefits?
No. Although H-1B employees pay for unemployment insurance tax, if they lost their job they would have lost their legal status or ability to work - a requirement for state unemployment compensation. However, their H-4 spouse who worked on EAD may be eligible for state unemployment benefits.

5. If an employee requests for leave because of personal reasons, can the employer stop paying the employee? 
If an employee asks for a leave of absence or unpaid leave for personal reasons unrelated to the employer, the employer does not have to pay the employee.  For example, if an employee requests time for an extended vacation, a sabbatical leave, or caring of a sick relative, then the employer does not need to pay the employee the required wage.

6. If an employee needs time to recover from an accident, must the employer continue to pay the employee? 
This situation is similar to an employee taking maternity leave. The employer's obligation to pay is governed by the employer's benefit plan or other applicable laws such as the Family and Medical Leave Act or the Americans with Disabilities Act.

7. Can an employer furlough or bench an H-1B employee on account of a shelter-in-place order from the government authorities?

No, even under this situation, an employer must continue to pay the H-B employee the required wage. Otherwise, an employer could be subject to liability including fines, back wage obligations, as well as debarment from the DOL’s temporary and permanent immigration programs for a period of time.

8.  What if an employee has contracted with COVID-19 and become unable to work? 

The employer generally does not have to pay an employee who is not able to work because of reasons unrelated to the employer. However, if employer has a rule regarding quarantining an employee who has contracted COVID-19, this could be classified as a decision by the employer. In this situation,  the terms of the employer's benefit plan or other laws such as the Family and Medical Leave Act or the Americans with Disabilities Act may also apply. 

9. Can an employer reduce the hours of an H-1B worker or convert her status from full-time to part-time? 

Yes. In this situation, a material change has occurred and the employer must file a new LCA to reflect this change. Additionally, the employer is also required to file an amended H-1B petition to report this change to USCIS.  The change may only take effect upon the receipt of the H-1B petition by USCIS.

10. If an employer cannot afford to pay an H-1B worker the required wage or simply does not wish to continue the sponsorship, what must the employer do in order to terminate its obligation to pay?
The regulation provides that the obligation to pay the required wage stops if there has been a bona fide termination of the employment relationship. A bona fide termination means that the employer has notified USCIS that the employment relationship has been terminated so that the petition is canceled. Further, an employer is responsible for paying for the return transportation cost of the employee if the employer terminates the employee before the end of the approved period.

11.  If an H-1B employee is laid off due to COVID-19, can the employee change status or transfer to another employer? 

Yes, an H-1B employee who is laid off has a grace period of 60 days or until the end of the approved employment period, whichever is shorter, to file for a change of status or to seek sponsorship by another H-1B employer.

12. If an H-1B employee's work-site changes due to COVID-19, must a new LCA be obtained? 

If the new location is within the same metropolitan area or commuting distance from approved job site, a new LCA is not required.  However, a notice of the H-1B job opening must be posted at the new job site as usual.  DOL will consider the posting timely if the notice is posted within 30 calendar days after the worker begins work at the new job site location.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Suspension of U.S. Domestic and Overseas Immigration/Visa Services Because of COVID-19

The COVID-19 pandemic has stopped or slowed down most of the regular business activities of the world.  In response to the challenges related to the Coronavirus, various U.S. government agencies have also taken significant measures to protect public health. Both local and overseas immigration and visa services are also severely limited. 

Routine U.S. Consulate Visa Services Suspended 

As of 03/20/2020, the U.S. Department of State is temporarily suspending all routine visa services at all U.S. Embassies and Consulates.  All routine immigrant and nonimmigrant visa appointments are cancelled.  Urgent and emergency visa services are provided based on each embassy's or consulate's available resources. Visa applicants should refer to each embassy/consulate's website for further information. It should be noted that the ESTA/Visa Waiver Program is still available.  The Machine Readable Visa (MRV) fee is valid and may be used for a visa appointment in the country where it was purchased within one year of the date of payment.

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ESTA/Visa Waiver Travelers May Extend Status 

Individuals admitted to the U.S. through John F. Kennedy International Airport, NY (JFK) and Newark Liberty International Airport, NJ (EWR) under the VWP/ESTA program who are not able to depart the U.S, before their authorized period of stay because of COVID-19 related issues can contact the Deferred Inspections office, (718) 553-3683,  at JFK, starting Monday, 03/16/2020, M-F, 9am to 4pm ET and request Satisfactory Departure for up to 30 days. Contact the CBP office of other airports for their specific procedures. 

USCIS Suspended Routine In-Person Services Until May 3rd.

As of 03/18/2020, U.S. Citizenship and Immigration Services has suspended routine in-person services, including all interviews and biometrics appointments, until at least May 3rd. USCIS will continue to adjudicate applications submitted by mail. USCIS will send out new appointment notices to applicants. Applicants may also request for new appointments with USCIS. Individuals who need emergency services must schedule an appointment through the USCIS Contact Center, 800-375-5283. 

Premium Processing Services Suspended

USCIS suspended premium processing service for this year's H-1B CAP petitions until May and June 2020.  As of 03/20/2020, premium processing service has also been suspended for all I-129 and I-140 petitions until further notice. 

Scanned and Photocopied Signatures Temporarily Allowed 

USCIS has temporarily relaxed the requirement of original signatures in immigration petitions.  Previously certain applications including the I-129 petition must be submitted with the original signatures of the petitioners and applicants.