FGI News and Publications

Non-Immigrant Related Questions

I am a foreign national was admitted into the U.S. on a

nonimmigrant (guest worker) visa, and my status is about expire. I

am currently unable to return to my home country. What can I

do?

The U.S. Citizenship and Immigration Services (USCIS) affirms

that a foreign national will be out of status and begin to accrue

unlawful presence, if the foreign national stays beyond the period

of stay granted on their I-94 record. However, the USCIS has

discretion in special situations and may forgive periods in which

the foreign national failed to maintain nonimmigrant status. See

the following: https://www.uscis.gov/humanitarian/special-situation.

It is recommended that a foreign national who is about to have

their nonimmigrant status expire, and is unable to depart the U.S.

because of the COVID-19 pandemic, file an application or petition

with the USCIS to extend their status or change their status to

another nonimmigrant category in order to avoid accruing unlawful

presence. For example, a foreign national who is unable to depart

the U.S., and whose nonimmigrant status is about to expire, may

change their status to the B-2 category. Foreign nationals who have

the potential of falling out of status should contact an attorney

for guidance.

Are foreign nationals currently able to apply for

nonimmigrant visas at a U.S. embassy or consulate or be issued a

nonimmigrant visa or immigrant visa at a U.S. embassy or

consulate?

No. The U.S. Department of State (DOS) has suspended all routine

immigrant and nonimmigrant visa processing at all U.S. embassies

and consulate around the world until further notice, as a result of

the COVID-19 pandemic. At this point in time, it is unknown as to

when routine visa processing will resume. Our office is continuing

to monitor the situation, and will provide more information as it

becomes available.

May foreign nationals who are currently outside of the

U.S. still eligible to have a nonimmigrant visa petitions filed on

their behalf or use a valid nonimmigrant visa to enter the

U.S.?

Yes. Foreign nationals may be sponsored for a nonimmigrant

classification (Example: H-1B, L-1, O-1, E-1, E-2, etc.) by having

a nonimmigrant visa petition filed with the USCIS on their behalf.

In addition, a foreign national that is already in possession of a

valid nonimmigrant visa may still use it to apply for admission to

the U.S. at a port of entry with U.S. Customs and Border Protection

(CBP).

I work in the U.S. as an H-1B nonimmigrant, my employer

no longer has full-time work available for me due to COVID-19, but

she or he wants to retain me. What are my options?

U.S. employers have a number of options, if they no longer have

full-time work for their H-1B nonimmigrant worker due to COVID-19.

The U.S. employer may file an amended H-1B petition with USCIS to

change the foreign national’s employment from full-time to

part-time. A new Labor Condition Application (LCA) would need to be

filed with the U.S. Department of Labor (DOL) to document the

part-time employment. Once the LCA is certified, an amended H-1B

petition would need to be filed with the USCIS. (Note: Nonimmigrant

workers in the H-1B1 and E-3 categories would also need new LCAs

filed with the DOL and amended petitions filed with the USCIS to

document the part-time employment.)

Employers may place their H-1B, H-1B1, and E-3 nonimmigrant

workers in “non-productive status” as long as the

employer continues to pay the nonimmigrant worker during the

non-productive status. Failure to pay workers in the H-1B, H-1B1,

and E-3 categories may result in LCA violations that could subject

the U.S. employer to fines and the payment of back wages to the

worker(s).

H-1B, H-1B1, and E-3 nonimmigrant workers may also use their

paid time-off (PTO) in order to maintain status. However, since

most nonimmigrant workers are not given weeks or months of PTO,

this is unlikely to serve as a long-term solution during the

COVID-19 pandemic.

U.S. employers that employ workers in other nonimmigrant

categories, such as the L-1, O-1, E-2, etc. may want to consider

filing amended petitions to document changes in employment. Whether

an amended petition is required to be filed with the USCIS for

these workers depends on the particular facts and circumstances of

the case. It is recommended that U.S. employers that no longer have

full-time work available for their nonimmigrant workers, and wish

to try to retain their nonimmigrant workers, contact an attorney

for guidance.

I work in the U.S. as a nonimmigrant, my employer has

had to terminate my employment due to a lack of work. What are my

available options?

Nonimmigrant workers who have had their employment terminated

may try to change their status to the B-2 (visitor) category. The

maximum period of B-2 status that may be requested is six (6)

months. In order to change status to the B-2 category, the foreign

national may file an Application to Change Nonimmigrant Status

(Form I-539) with the USCIS. Dependent (spouse and children under

21 years of age) family members are eligible to change their status

to the B-2 category, as well.

If the nonimmigrant worker is married to a foreign national who

is maintaining valid H-1B, L-1, or O-1 status, the nonimmigrant

worker spouse who has recently lost their job, may have the option

to change their status to the H-4, L-2, or O-3 categories,

depending on the nonimmigrant status of their spouse. If a spouse

is maintaining valid F-1 status, the nonimmigrant worker spouse who

has recently lost their job, may be able to change their status to

the F-2 category.

Another option would be for a foreign national to find a new

U.S. employer willing to sponsor them for employment. The new U.S.

employer would need to file a new Petition for Nonimmigrant Worker

(Form I-129) with USCIS. If the foreign national was in H-1B status

with a previous U.S. employer, and a new U.S. employer is willing

to sponsor the foreign national for the H-1B category, the foreign

national may begin work as soon as the Form I-129 petition is

received at USCIS. (Note: If the new U.S. employer’s

Form I-129 petition indicates the foreign national is changing

status to another nonimmigrant category, the foreign national will

need to wait for the Form I-129 petition to be approved before

beginning work with the new U.S. employer.)

A foreign national in H-1B, H-1B1, E-3, L-1, O-1 status may

apply for a one-year Employment Authorization Document (EAD), if

the following requirements are met:

• The foreign national is the beneficiary of an approved EB-1,EB-2, or EB-3 Form I-140 petition;
• The foreign national’s priority date is not current;
• The foreign national can demonstrate a compelling circumstancethat justifies the issuance of the EAD, or the foreign

  national is able to show his or her priority date is one (1) year

  or less from becoming current.

In addition, the following requirements must also be met:

• The foreign national must file an Application for EmploymentAuthorization (Form I-765) and pay the Form I-765 filing fee.
• The foreign national must be in one of the above nonimmigrantstatuses when the Form I-765 application is filed.
• The foreign national may not have a felony conviction or twomisdemeanor convictions in order to be eligible for the one-year

  EAD.

• The foreign national is in a “period of authorizedstay” during the validity period of the EAD. (Note: If

  foreign national’s priority date becomes current while in the

  U.S. in connection with their employment-based U.S. Green Card

  case, the foreign national would not be able to file a Form I-485

  application. The foreign national would need to complete the final

  step of the U.S. Green Card process overseas through consular

  processing. In addition, the foreign national would not be able to

  be placed into any type of nonimmigrant status while in the U.S. In

  order to be placed into a nonimmigrant status, the foreign national

  would need to depart the U.S. and re-enter the U.S. with a valid

  nonimmigrant visa.)

• The foreign national is not eligible to apply for an AdvanceParole document.
• The one-year EAD period begins from the date of approval.
• Compelling Circumstances: What is considered acompelling circumstance is to be determined on a case-by-case

  basis. USCIS has discretion with respect to determining whether

  compelling circumstances exist, based on the totality of the

  circumstances. The comments to the final rule provide four examples

  of compelling circumstances, which are the following: (1) Serious

  illness or disability to the principal applicant or dependents; (2)

  Employment retaliation; (3) Other substantial harm to the principal

  applicant; (4) Significant disruption to an employer. These

  examples are non-exhaustive. Loss of employment, alone, is not

  considered to be a compelling circumstance. Other examples that are

  not considered to be compelling circumstances, include the

  following: child aging-out, dissatisfaction of salary or current

  position, home ownership, professional career development of

  dependents, extraordinary wait, pursuit of advanced academic

  degree, approval of a National Interest Waiver petition, pursuit of

  a start-up business, etc.

• Derivative family members may apply for a one-year EAD. Theone-year EAD may not exceed the validity period of the one-year EAD

  for the principal applicant.

• The foreign national must continue to show a compellingcircumstance when extending the EAD in one-year increments, unless

  the foreign national is able to show their priority date will

  become current within a one-year period. (Note: The

  compelling circumstance for the one-year EAD extension does not

  have to be the same compelling circumstance as the initial one-year

  EAD.)

• Note: The one-year EAD, based on an approved Form I-140petition, is designed to be a stop-gap measure, intended as

  a form of relief for the foreign national pursuing lawful permanent

  residence, allowing the foreign national to remain in the U.S. and

  continue working, who might otherwise have had to abruptly stop

  working and depart the U.S. It is not recommended to be pursued,

  unless there are no other options to keep the foreign national in

  the U.S. and working.

H-1B-Specific Questions

What does a U.S. employer need to do if moving an H-1B

worker to a new work location not listed on the H-1B petition

and/or LCA (Example: H-1B worker teleworks from home), but

within the same area of intended

employment listed on the LCA?

The U.S. Department of Labor’s (DOL) Office of Foreign Labor

Certification (OFLC) has confirmed that moving an H-1B worker to a

new worksite location within the same area of intended employment

does not require an amended H-1B petition or LCA to be filed, if

the terms and conditions of employment have not changed for the

H-1B worker. Under current law, the LCA or LCA notice must be

posted (physical hard copy posting or electronic posting) at the

new work location before the H-1B worker begins work at the new

worksite location. The DOL has recognized that the COVID-19

pandemic may have resulted in serious disruption to U.S. employers.

As a result, DOL has indicated that posting of the LCA or LCA

notice will still be considered timely, even if the H-1B worker

began work at the new worksite location before the LCA or LCA

notice was posted, provided the LCA or LCA notice is posted

within 30 calendar days after the H-1B worker begins

work at the new worksite location. If a U.S. employer

is now having an H-1B worker telework from their home as a result

of the COVID-19 pandemic, the U.S. employer should post the LCA or

LCA notice within 30 days of the start of the H-1B worker beginning

to telework from their home. The LCA or LCA notice may be

physically posted at the H-1B worker’s home in two conspicuous

places in order to satisfy the LCA notice requirement.

What does a U.S. employer need to do if moving an H-1B

worker to a new work location not listed on the H-1B petition

and/or LCA, and outside the area of intended

employment, as a result of COVID-19

pandemic?

The DOL affirmed that the short-term placement provisions within

the DOL’s LCA regulations are applicable in the above scenario.

Chapter 20, Section 655.735 of the Code of Federal Regulations

(CFR) states H-1B workers may be placed at worksites not listed on

an LCA on a short-term basis, if certain conditions are met. Under

this regulation, an H-1B employer may assign an H-1B worker at any

worksite not listed on the LCA, as long as the total number of

workdays at the other worksite, or a combination of worksites, in a

one-year period (i.e., January 1st through December 31st), does not

exceed 30 days. If the H-1B employer elects

to assign the H-1B worker to a worksite not listed on the LCA for a

period not to exceed 30 days, the H-1B employer must:

1. Continue to pay the H-1B worker the wage rate listed on theLCA;
2. Pay the worker the cost of lodging for both workdays andnon-workdays;
3. Pay the worker the actual cost of travel, meals, and incidentalexpenses for both workdays and non-workdays;
4. Make sure there is no strike, lockout, labor dispute, etc. inthe same occupation as the H-1B worker’s occupation at the

   worksite the worker will be placed;

5) Comply with all LCA requirements (i.e., Notice posting

requirement, confirmed no strike or lockout at location listed on

LCA, Confirmed employment of H-1B worker will not adversely affect

working conditions of others at work location on LCA, etc.) to

date.

However, there is an exception to this rule. Under this

exception, the H-1B worker may be placed at a worksite, or a

combination of worksites, in a one-year period, for up to

60 days, if the following additional

requirements are met:

1. The H-1B worker maintains an office, or work station, andmaintains a dedicated telephone line(s) at the permanent work

   location listed on the LCA;

2. The H-1B worker spends a substantial amount of time at thepermanent worksite in a one-year period; and
3. The H-1B worker’s residence is located near the permanentworksite listed on the LCA, and not in the area of the short-term

   worksite (Note: Evidence that would establish a residence near the

   permanent worksite would be lease agreement, bank account

   statement, driver’s license, etc.)

Please note that 20 CFR 655.735 prohibits the short-term

placement of an H-1B worker, if any of the following

exist/occur:

1. The H-1B employer has a certified LCA for the occupation atthat work location.
2. The H-1B worker has just entered the United States to begin hisor her H-1B employment. (Note: The regulation indicates the initial

   assignment given to the H-1B worker who has just entered the United

   States, must be the work location specified on the LCA.)

3. H-1B employer must not continuously rotate H-1B nonimmigrantson short-term assignments in a manner that would defeat the

   short-term placement option, which is to provide the H-1B employer

   with some flexibility to afford enough time to obtain a new LCA for

   the worksite the H-1B worker will be employed.

Once the 30 or 60 workday limit has been reached, the H-1B

employer is required to file a new LCA with the DOL and amended

H-1B petition with the USCIS to document the new work location.

Green Card Applicant Related Questions

Does President Trump’s proclamation of April 22,

2020 prevent foreign nationals already present in the U.S. from

applying for a U.S. Green Card or pursuing an immigrant visa

overseas?

No, foreign nationals who are currently residing in the United

States may continue to pursue an Application to Register Permanent

Residence or Adjust Status (Form I-485) or an Immigrant Visa

Application (Form DS 260) overseas. The proclamation only prohibits

foreign nationals for a 60-day period, who are outside of the U.S.,

from using an immigrant visa (issued on or after April 24, 2020) to

enter the U.S. Those foreign nationals issued an immigrant visa

prior to April 24, 2020, may use the immigrant visa to enter the

U.S. In addition, President Trump’s recent proclamation does

not prevent foreign nationals with a valid nonimmigrant visa from

using the nonimmigrant visa to apply for admission into the

U.S.

I am currently in H-1B status and my U.S. employer is

sponsoring me for a U.S. Green Card. Unfortunately, my employer

terminated my H-1B employment due to a lack of work caused by the

COVID-19 pandemic? However, my U.S. employer would still like to

continue to move forward with my U.S. Green Card case. Is this

possible?

Yes. The requirements that need to be met to sponsor a foreign

national for a U.S. Green Card are different from the H-1B

category. As long as the U.S. employer is able to show it has an

intent to offer the foreign national a permanent, full-time at the

time the U.S. Green Card is issued in the future, work available

for the foreign national, and the ability to pay the offered wage

described in the petition that the Green Card case is based, a

foreign national may still be successful with the Green Card

application process.. Please note that the USCIS may issue a

Request for Evidence (RFE) in the future, requesting information

with respect to the U.S. employer’s intent to offer permanent,

full-time employment; evidence of the availability of work for the

foreign national in the future; and evidence of the ability of the

sponsoring employer to pay the offered wage described in the

petition to the foreign national.

I am the beneficiary of a prior approved Immigrant

Petition for Alien Worker (Form I-140). The U.S. employer that

filed my Form I-140 petition has had to terminate my H-1B

employment due to COVID-19, and indicated that it will no longer

sponsor me for a U.S. Green Card. What happens to the Priority Date

of this prior approved Form I-140 petition?

As long as the Form I-140 petition is not revoked due to fraud

or misrepresentation or government error, the foreign national

would be able to transfer the priority date to any subsequently

approved Form I-140 petition filed on the foreign national’s

behalf.

U.S. Citizen and Lawful Permanent Resident Questions

If I am a lawful permanent resident of the U.S. and am

currently outside of the country, can I return to the

U.S.?

Yes, American citizens and lawful permanent residents of the

U.S. and their immediate families may return to the U.S. Please

note that U.S. Customs and Border Protection (CBP) has established

additional screening procedures as a result of the COVID-19

pandemic. If, upon arrival in the U.S., a person is symptomatic for

coronavirus, she or he will be referred to the Center for Disease

Control and Prevention (CDC) for a medical evaluation. Individuals

not symptomatic may be required to self-quarantine in the U.S. for

fourteen days.

What are the repatriation procedures for U.S. citizens,

lawful permanent residents and their families?

Repatriation is administered by the Administration for Children

and Families’ Office of Human Services Emergency Preparedness

and Response (OHSEPR) which is under the Department of Health and

Human Services (DHHS). When activated by OHSEPR for an emergency

repatriation incident, a state will execute its state emergency

repatriation plan (SERP) to provide temporary assistance to

returning eligible citizens at designated points of entry. American

citizens who would like to inquire about eligibility may email USCitzReturn@iss-usa.org or call

1-800-458-6124.

Additional Related Questions

Are there any exceptions to the restriction barring

foreign nationals who are outside of the U.S. from entering the

U.S. under the Presidential Proclamation?

Yes. There are several exceptions, which include lawful

permanent residents (Green Card holders), foreign nationals in the

medical field (physicians, nurses, and other healthcare workers and

their spouses and children) who are coming to the U.S. to perform

work deemed essential to the fight against COVID-19. In addition,

EB-5 immigrant investors, immigrant spouses and children of US

citizens, prospective adoptees, individuals who would further law

enforcement objectives, members of the Armed Forces and their

spouses and children who are immigrants, Iraqi/Afghani Special

Immigrants, foreign nationals seeking special SI or SQ

classifications, and foreign nationals whose entry would be in the

national interest as determined by the Secretary of State, the

Secretary of Homeland Security, or their respective designees, are

also permitted to apply for immigrant visas (IV) even if they are

outside of the United States.

Besides the Presidential Proclamation issued on April

22, 2020, what other restrictions have been put in place by the

U.S., resulting in the inability of foreign nationals to enter the

U.S.?

Currently, the United States has several travel restrictions in

place. In March 2020, the U.S. suspended the entry of foreign

nationals from China, Iran, Europe (the Schengen countries), the

United Kingdom, and Ireland. On March 20, 2020, the U.S. closed

both its northern (Canadian) and southern (Mexican borders) to all

nonessential travel until May 20, 2020. This closer may be

extended. Commercial activity and essential trade/travel is not

affected by the border closure. However, what is deemed essential

travel at land ports of entry depends on the facts and

circumstances. It is recommended that individuals consult an

attorney, if attempting to enter the U.S. at a port of entry based

on the position that their travel into the U.S. is considered

essential travel.

Is the USCIS still conducting biometrics appointments,

Green Card interviews, Naturalization interviews, etc. at USCIS

district offices?

On April 1, 2020, USCIS suspended routine in-person services and

closed their district offices. Currently, they are scheduled to

re-open on June 4, 2020. However, the June 4 date is a second

extension of the original scheduled re-opening date, and it is

possible that the USCIS may extend this again. Foreign nationals

that have scheduled in-person appointments, such as biometrics

appointments and interviews, will receive a notice with the new

time, date, and location. Likewise, Green Card applicants who have

been scheduled for an interview during this period in connection

with their citizenship applications will have their interviews

rescheduled.

My visa petition was issued a Request for Evidence

(RFE), and the due date is quickly approaching. Do I have

additional time to respond to the RFE, because of the COVID-19

pandemic?

Maybe. Due to the COVID-19 pandemic, the USCIS has announced

flexibilities to assist applicants and petitioners who are

responding to RFEs, Notices of Intent to Deny (NOID), Notices of

Intent to Revoke (NOIR). The USCIS will consider a response to the

any of the above timely, if received within 60 calendar days after

the due date indicated on the RFE or notice. This flexibility is

applicable to all NOIDS, NOIRs, and RFEs dated between March 1,

2020 and July 1, 2020, inclusive.

Originally published May 12, 2020

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.