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.

7 Things You Should Know After H-1B Approval

So you are one of the lucky winners in the H-1B visa lottery.  Not only did you get a visa number, but your H-1B petition has actually been approved, and you just started working as an H-1B professional in the United States!   

This is your first real job after many years of studies in school. Although this is an exciting time of your life, you should not relax just yet.  There are still many legal requirements and consideration that you should be aware of, as an H-1B worker.  The following are the most important ones:

1) Change in Work Location:  There is some new law that went into effect.  Generally speaking, before the work location (or client/project) of a temporary worker (E.g, H-1B) is changed, the employer must first submit an amendment before the move.  Sometimes, re-posting of the Labor Condition Application (LCA) or submission of a new LCA may be sufficient.   Failure to follow these guidelines will result in denial of future immigration applications and other adverse consequences. 

2) Material Changes in Employment:  Other material changes including change in the job nature and classification, working conditions, etc., must also be reported to USCIS through an amendment or extension petition.

3) International Travel:  Before travelling internationally, you must make sure that you have the required documentation to ensure your return to the U.S.  Usually, you must first apply for an H-1B visa stamp before you may return to the U.S.

4) I-94 Information:  Upon your return from international travel, you must check the entry information in the Form I-94 to make sure that the info is correct.  For example, if your H-1B/L-1 status ends on 9/30/2017 and your I-94 is only valid until 6/30/2107, it could be a mistake or an extension application must be filed before 6/30/2017.

5) Change of Address: For all non - U.S. citizen employees, every time when they change their addresses, temporarily or permanently, they must file the AR-11 form and keep a copy or proof online filing.  

6) Extension of Status:  Before your temporary employee status expires, you should start the extension application process at least 4-5 months before the expiration date to ensure timely filing.

7) Spouses and Dependents:  Do not forget to also keep the status of your spouse and children current.  Also check their I-94 entry information every time they travel. 

U.S. Land Visitors May Apply for I-94 Before Travel

If you are coming to the U.S. by land, you can apply for an I-94 seven days before you arrive.

The Form I-94 (Record of Arrival / Departure) is a very important immigration document. It provides non-immigrant visitors evidence they have been lawfully admitted to the U.S., which is required to verify their immigration status and employment authorization. 

Travelers arriving at land border ports of entry can speed up their entry by using the online I-94 application.  U.S. Customs and Border Protection (CBP) announced an enhancement to the I-94 website today, which allows travelers to apply and pay for their I-94 online prior to arriving at a land port of entry. Travelers can speed up their entry into the U.S. by providing their biographic and travel information, and paying the $6 fee for their I-94 application online up to seven days prior to their entry. Payment can be made with a credit card, debit card, direct debit, or through PayPal.  

CBP expects that this new I-94 policy will expedite international travelers' entry into the U.S. at land ports of entry, while maintaining the highest standard of security.   It is hoped that this automated functionality will increase the efficiency of the entry process and reduces waiting time for international travelers. 

Travelers will now receive a provisional I-94 after submitting their application and payment online. The I-94 application will collect information that is usually collected in-person at the land port of entry, including biographic information (name, date of birth, country of citizenship), passport details, visa details, and petition/Student and Exchange Visitor Program (SEVIS) number.

In order to finalize the I-94 issuance process, a traveler must present themselves at a land port of entry within seven days of their application and may have to submit biometrics, and be interviewed by a CBP officer. Travelers should also be prepared to show evidence of their residence, employment, and/or travel plans, if requested by the CBP officer.

If the traveler does not complete their I-94 issuance process within seven days of their application, their provisional I-94 will expire and they will have to reapply and the pay the fee again. There are no refunds if the I-94 is not issued within the seven day period or if the traveler is denied entrance to the United States. 

 In May 2013, CBP already automated the I-94 in the air and sea environment. The automated system allows CBP officers to create an I-94 Arrival Record at the time of inspection with passenger manifest information—eliminating the need for paper forms and manual data entry. According to CBP, the automation of the I-94 Arrival/Departure Record has greatly improved the traveler experience while saving the U.S. government an estimated $34.5 million in its first two years. To apply for your I-94 online, visit https://i94.cbp.dhs.gov.

Five-year travel history can now be accessed on CBP I-94 system

Have you as a visitor ever tried to remember the exact date of entering the United States two years ago?  Or have you lost an old I-94 record of arrival/departure that you need for an application?  The new upgrade to the CBP's I-94 retrieval system could be the solution to these problems.  Since its inception last year, the CBP I-94 system was limited by its ability to generate only the last entry record of foreign visitors.  Starting today (May 1, 2014), the system has been upgraded to allow users to retrieve I-94s from within the last five years. To retrieve older I-94s, visitors must still file a Form I-102 application with USCIS.  Such an upgrade will prove to be extremely useful for many foreign visitors.

Paper I-94 form (Arrival/Departure-Record) Being Phased Out

Customs and Border Patrol (CBP) has started phasing out the use of paper Form I-94 since April 30, 2013.  

Paper I-94 form being phased out

It means that foreign visitors coming or returning to the U.S. will no longer have to complete the little white I-94 form any more upon arrival.  The I-94 form has been used by the government to keep track of the arrival and departure record of foreign visitors for many years.  A new automatic process is being implemented to replace the paper form.  CBP will now obtain all travelers’ arrival/departure information automatically from their electronic travel records.  The new system should actually be a more secure and accurate system than the paper system.  

If foreigners need to obtain their I-94 number and arrival/departure information for employment and other purposes, they can retrieve it by visiting CBP.gov/I94 . 

The following is the implementation schedule of the new electronic I-94 system:

Week 1	4/30/13 - 5/03/13	Charlotte Douglas International Airport, Orlando International Airport, Las Vegas Airport, Chicago O’Hare, Miami International Airport and Houston Bush Intercontinental Airport
Week 2	5/7/13	Major Air and Sea Ports within the following field offices: New York, Boston, Buffalo, Baltimore, Detroit, Atlanta, Tampa, Puerto Rico, Miami Chicago New Orleans and Houston
Week 3	5/14/13	Major Air and Sea ports within the following field offices: Pre-Clearance, San Francisco (includes Hawaii and Guam), Tucson, El Paso, Seattle, Portland (includes Alaska), Los Angeles, San Diego and Laredo
Week 4	5/21/13	All remaining airports and seaports