The global COVID-19 crisis presents obstacles to 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 US 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 flow impacts payroll.
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 US 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 US without a B-1 visa via the Visa Waiver Program.
Visitors in the US 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-539, 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 30 days period for “satisfactory departure.” Both visitor types will need to submit evidence proving they are unable to leave the US 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 US 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 a specialty occupation,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 US.
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 employees 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 US. They also allow foreign businesses to send executives and managers to the US 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 is great it 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. Therefore employers will need to submit individual L-1 petitions alongside substansial supporting documents.
Any business that employees L-1 workers during the COVID-19 crisis should consult with an experienced immigration attorney to avoid potential issues.
F-1 and OPT Students
F-1 visas allow foreign students to study in the US. 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 US.
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 US in order to maintain their eligibility.
Any F-1 student in the US during the COVID-19 crisis should consult with an experienced immigration attorney before departing the country to avoid potential issues.