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.

Proposal to Cancel H-1B Extensions Beyond the Normal Six Years

The Department of Homeland Security is considering new regulations to cancel the current H-1B extension requests beyond the normal six years of employment, according to a news report by the DC Bureau of the McClatchy newspaper.  If the proposal gets implemented, more than one million H-1B workers could lose their status to continue living and working the United States. 

The H-1B Visa Program was created by Congress to grant foreign high-skilled workers visa status to live and work in the United States.  The normal maximum period of employment is six years.  The spouses and children of H-1B workers may also stay with them in the U.S.  Many of these H-1B workers also apply for permanent resident status based on sponsorship by their employers.  However, due to visa backlog, many workers have to wait for long periods of time - often exceeding six years - before they may obtain a green card.

Consequently, Congress passed a law to allow these H-1B workers to extend their visa status beyond the normal six years under certain circumstances.  Specifically, the American Competitiveness in the 21st Century Act (AC21) passed by Congress in 2000 provides two mechanisms for H-1B workers to request for extension of H-1B status beyond the normal six years.  

First, Section 104(c) of AC21 authorizes approval of H-1B status beyond the six-year maximum period if an immigrant visa is unavailable to the beneficiary due to per-country cap limits in the applicable visa category. (India is the one of the most backlogged countries for employment-based visas.) Second, Section 106(b) of AC21 authorizes approval of one-year extensions of H-1B status beyond the six-year maximum period if 365 days have passed since the filing of a labor application or immigrant visa petition by an employer on behalf of the beneficiary. 

Many thousands of H-1B workers have taken advantages of the above extension rules to continue their legal employment in the United States.   The current administration is reviewing these rules for possible re-interpretation.  According to the news report by McClatchy, memos are being circulated between the heads of DHS to determine whether the administration can reinterpret the "may grant" language of AC21 so as to stop granting extensions.  Does "may" means that DHS can make decisions on these extension requests on a discretionary basis?

USCIS has not yet made any official statements on this proposal.  However, the agency has been implementing a series of policy and regulatory changes based on the President’s Buy American, Hire American Executive Order.  For examples, the wage levels of H-1B petitions have been scrutinized and green card applicants based on offer of employment are required to be interviewed.  DHS is also taking actions to cancel the current policy of allowing H-1B spouses to work in the United States. 

The potential impact of these proposed changes would be substantial and devastating.  It is estimated that more than one million H-1B workers, many of them Indians, would be affected by these changes.  Many of them have families and homes in the United States.  Strong reactions and litigation are expected from these H-1B workers and the employers if the proposal does get implemented.  

It is difficult to predict whether the administration will actually scrap the H-1B visa extension rules.  However, it is a good precautionary measure for H-1B workers to submit their extension applications as soon as possible. Under the existing policy, eligible employees may request for up to three years of extension in one application.   Hence, they should discuss and evaluate their situation with their employers and lawyers to see if extensions can be filed now. 

I-129 Extensions Subject to Closer Scrutiny

USCIS adjudication officers are requested to review I-129 extension petitions with the same standards used in reviewing new petitions, under an updated policy guidance of the agency.  This applies to common nonimmigrant visa petitions such as H-1B, L-1A, L-1B, O-1, etc.  

Extension petitions have been traditionally subject to less scrutiny if there are no material changes in the petitioner, beneficiary, and the terms and location of the underlying employment.  And these petitions generally have shorter processing times.  

The policy will "help advance policies that protect the interests of U.S. workers", according to L. Francis Cissna, who was sworn in as new Director of USCIS on October 8, 2017.

Under the new guidance, adjudication officers must apply the same level of scrutiny to both initial petitions and subsequent petitions for extension of status. It is, therefore, very important the employers and employees to provide sufficient and probative evidence to support all their I-129 petitions from now on to avoid denial or delays.  

Processing of H-1B Extensions Delayed

USCIS confirmed recently that the processing of H-1B petitions for extension of status has been exceptionally slow at both the California Service Center (CSC) and Vermont Service Center (VSC). In a recent call with AILA on 02/03/2016, USCIS explained that the delays are attributed to an increase in H-1B filings, including filings required by Simeio.  Filings using premium processing service have also increased.  

Comparable Evidence Standard for EB1 Outstanding Professors and Researchers Adopted

The DHS has finalized new regulations to improve several nonimmigrant visa programs as well as the EB-1B Outstanding Professors and Researchers immigrant program. This final rule, entitled: "Enhancing Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants" will go into effect on February 16, 2016.

EB-1 Outstanding Professors and Researchers

Foreigners who can establish that they are outstanding professors or researchers may apply for permanent residence (green card) in the United States.  It generally requires at least three years of relevant experience and a tenure track or comparable job offer by a U.S. educational institution or private company. (To petition for an outstanding researcher, a private employer must show documented accomplishments and that it employs at least 3 full-time researchers.)  No labor certification is required. 

Further, applicants must submit evidence to prove that they are recognized internationally as outstanding in the academic field specified. Specifically the regulation requires that they must submit evidence to meet at least two of the following six criteria:

(A) Documentation of the alien's receipt of major prizes or awards for outstanding achievement in the academic field;

(B) Documentation of the alien's membership in associations in the academic field which require outstanding achievements of their members;

(C) Published material in professional publications written by others about the alien's work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation;

(D) Evidence of the alien's participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;

(E) Evidence of the alien's original scientific or scholarly research contributions to the academic field; or

(F) Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field;

The new regulation for outstanding professors and researchers accepts other types of evidence that are comparable to the above-listed ones.  For examples, the applicant may now submit important patents or prestigious peer-reviewed funding grants to prove international recognition.  This modification is good news for professors and researchers who would like to apply for a green card under the EB-1 category.  It provides alternative ways for them to prove their case when the primary evidence is not available.  

Improvements in the Singapore, Chile (H-1B1), Australia (E-3) and CNMI  CW-1 Programs

H-1B1 and principal E-3 nonimmigrants will now be allowed to work for the sponsoring employer without first applying for an employment authorization document (EAD).  Further, these foreign workers may continue employment with the same employer for up to 240 days if an extension of stay petition has been timely filed by their employers.   

Similarly, CW-1 nonimmigrants will enjoy the same continued employment authorization after the expiration of their current status, as long as their employers' timely-filed request for an extension of stay remains pending.

Finally, the new rule has also included the principal E-3 and H-1B1 nonimmigrant classifications in the existing regulations regarding the filing procedures for extensions of stay and change of status requests.