The global COVID-19 crisis has added new obstacles for foreign workers and their employers. This is especially true for visitors whose nonimmigrant visas are set to expire soon.
On the one hand, there are significant consequences for overstaying a visa — including bars from re-entering the United States for up to ten years in some circumstances. So, nonimmigrants whose visas are set to expire soon need to depart the country as soon as possible. On the other hand, travel is risky and potentially impossible right now. Nonimmigrants may be unable to leave the country before their visas expire due to border closures, quarantines, hospitalization, or other factors related to the pandemic. Employers, as well as their H-1B and L-1 workers, are also in a bind. It is increasingly challenging to satisfy the Department of Labor’s requirements, as operations need to be moved off-site and cash flows impact payroll.
Compared to the period from March 2018 to July 2019 before the pandemic, the US government has granted about 1.2 million fewer visas to adult immigrants, refugees, and temporary foreign workers abroad since consulates were closed in March 2020. The decline of 45% immigrant and 54% nonimmigrant visa arrivals resulted in zero growth in the working-age foreign-born demographic in the United States.
The Bureau of Labor Statistics (BLS) has reported more than 10 million job openings from June to August 2021. Those sectors that had a higher percentage of foreign workers in 2019 had higher rates of unfilled jobs in 2021. It is estimated that an industry that had a 10% higher dependence on foreign workers than another industry in 2019 saw a 2% higher rate of unfilled jobs in 2021.
There were about 2 million fewer working-age immigrants residing in the United States by the end of 2021. A calculation done using Current Population Survey (CPS) monthly data has shown that of the missing 2 million foreign-born workers, about 950,000 would have been college-educated, had the pre-pandemic trend continued. This dramatic loss of skilled workers is equal to 1.8 percent of all college-educated individuals working in the United States in 2019.
While the COVID-19 pandemic and resulting economic shutdowns have continued to disproportionately worsen unemployment among foreign-born workers relative to US-born workers, by July 2021, unemployment among the foreign-born had fallen below that of US-born workers. Unemployment rose significantly in 2020 in the wake of COVID-19, and the impacts have been disproportionately felt by minority groups including Asian, Hispanic, and Black Americans. Immigrants may face specific hardship because they are more likely to work in affected occupations.
Economic hardships among non-citizen immigrants is of specific concern because, unlike immigrants who have become citizens through naturalization, non-citizen immigrants are dramatically excluded from safety-net programs, and many are not eligible for the emergency benefits authorized by Congress.
Below, we offer some guidance for businesses and their employees with B-1, H-1B, L-1, and F-1 visas.
B-1 visas allow visitors to enter the United States to conduct business, including consulting with associates, attending conferences, negotiating contracts, and participating in short-term training. Citizens from some countries are eligible to enter the United States without a B-1 visa via the Visa Waiver Program.
Visitors in the United States with B-1 visas or visa waivers should take immediate steps to ensure they do not fall out of status and accrue unlawful presence. B-1 visitors can request to extend their status by up to six months through filing Form I-529, Application to Extend/Change Nonimmigrant Status. They have the option to file as many requests as necessary to remain in status until things settle down. Those with visa waivers can contact USCIS to request a 20 days period for “satisfactory departure.” Both visitor types will need to submit evidence proving they are unable to leave the United States before their period of authorized stay expires. If a visitor cannot file an extension request before their visa expires, they will need to demonstrate why their status should be restored based on “extraordinary circumstances.”
B-1 visitors and their associates in the United States during the COVID-19 crisis should consult with an experienced immigration attorney to avoid potential issues.
H-1B visas allow highly-skilled professionals to perform work in specialty occupations, which range from engineering to fashion modeling. This is a non-immigrant visa and ties the worker to their employer.
H-1B visas restrict the geographic area where the employee can work. So if their worksite is closed, their employer will need to confirm whether they qualify for certain “within-commuting-distance” or “non-worksite” exemptions. Their employer may also need to confirm whether they require a new LCA, public-notice posting, and new or amended H-1B petition.
Many businesses are laying off employees or placing them on furlough. This is tricky to do with H-1B workers, who are required to be paid the wage listed in their LCA. An employer cannot let an employee go without proving that the termination is “bona fide.” This requires the employer to cover the cost of the employee’s return to their country of citizenship or permanent residence. If the Department of Labor determines a termination is not bona fide, the employer may be required to pay back wages and the cost of the employee’s return to the United States.
H-1B workers who are laid off may be able to change employers within the 60 day grace period following their termination. Although their new employer will need to file Form I-129 alongside supporting documents, the H-1B employee can begin working as soon as USCIS issues a receipt notice (approximately two weeks after filing) and continue working while their application is pending.
Any business that employs H-1B workers during the COVID-19 crisis should consult with an experienced immigration attorney to avoid potential issues.
L-1 visas allow international businesses to transfer executives and managers from offices abroad to offices in the United States. They also allow foreign businesses to send executives and managers to the United States to establish a local office.
Businesses with L-1 employees must maintain an office where they conduct operations, and USCIS may conduct “on-site compliance” reviews from time-to-time. There is a chance that USCIS may visit an office that has been temporarily closed and incorrectly conclude that operations are terminated or that the L-1 employee no longer works there. In order to get ahead of this, employers preparing to temporarily close their offices should collect documentation showing that the closure is temporary and related to COVID-19.
Some workers have “blanket” L-1 visas. This option allows applicants to apply directly to a US consulate or embassy, which allows their employer to avoid submitting a separate petition to USCIS. However, L-1 visa employees will find it difficult to renew their visas abroad as consulates shutter their windows. Employers will therefore need to submit individual L-1 petitions alongside substantial supporting documents.
Any business that employs L-1 workers during the COVID-19 crisis should consult with an experienced immigration attorney to avoid potential issues.
F-1 visas allow foreign students to study in the United States. Many F-1 students are eligible to apply for Optional Practice Training (OPT), which provides work authorization for 12 months. Students must apply for OPT several months prior to graduation and they must submit their applications from within the United States.
Many schools have advised students to return to their home countries to ride out the COVID-19 pandemic. Although students should generally follow their advisors’ guidance, they should also consider applying for OPT before they leave the United States in order to maintain their eligibility.
Any F-1 student in the United States during the COVID-19 crisis should consult with an experienced immigration attorney before departing the country to avoid potential issues.
Passage Immigration Law has proudly served clients across the country from our offices in Portland, Oregon, Los Angeles, California, and Seattle, Washington. To discuss your situation with a legal team you can trust, contact us at (503) 427-8243, or you may schedule a consultation here.
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