Immigration lawyers Address US Visa Issues During COVID-19

Overview: The more we learn about the pandemic, the more interdisciplinary the arising challenges become. Immigrants make up an estimated 17% of the overall U.S. workforce. The seemingly insurmountable challenges arising from the pandemic are even trickier for professionals on H1B status, who have a unique set of requirements tied to their employment.

 At Blind, users are sharing their stories about being laid off for reasons independent of their performance. Because of this trend, Blind partnered with Saleh and Associates PA to help professionals get their immigration related questions answered. On Wednesday, April 15, the lawyers actively responded to the user’s anonymous questions. 

About Saleh:  Saleh is a Florida Bar Board Certified immigration lawyer with over 25 years of experience in all areas of U.S. immigration law. He has worked with thousands of individuals and companies to resolve their immigration issues. He has been listed in the Wall Street Journal and other similar publications as one of the best attorneys in Florida. 

During the four hour session, he addressed questions like: Are you dealing with immigration issues due to the COVID crisis? Facing a layoff, furlough, reduced work hours, etc.? Are you concerned about falling out of status? 

Saleh answered anything related to U.S. immigration law.

Key Topics

H1 B 

• Question: I got selected in this year’s H-1B lottery. Can I leave my company now and file my H1B petition with my new employer? Or am I required to file the petition with my current employer and can’t leave the company until H1B is approved? (Thank you for doing this AMA!)
  • Answer: “You can switch after 10/1 and you will need to show that you worked for the employer for at least a week or two before filing the new petition”
  • “You need to wait until the H-1B petition is approved and be admitted in, or change status to H-1B status. You should also work for the H-1B employer for a short period. At that point, you can commence the new H-1B petition with the new employer.”

• Question: “Will there be another H1B lottery this year? Lot of people filed multiple applications and they are not going to file a petition. Will USCIS do another lottery?”
  • Answer: “They will reassess the “submitted” cases based on how many filings/approvals take place”

• Question: “I got h1 picked in the lottery. I am on OPT and have Stem extension for next 24 months. I am expecting an offer from FAANG. If I switch now, can I get back on stem instead of H1.”
  • Answer: “You’re still in F-1/OPT status – correct? If yes, then you can continue on OPT. BUT, by leaving the employer who registered you for the H-1B lottery, you will be giving up your H-1B cap # and there’s no guarantee that you will be selected in 2021 or 2022.”

• Question: “I am L-1B visa. I got lucky to be selected in the H-1B cap lottery recently however I am getting anxious about layoffs. If I do end up getting laid off before the H-1B petition is adjucated or before October 1, do I lose my lottery selection or is there any way to use it find a different job? Thanks!”
  • Answer: “You’re not officially counted unless the H-1B petition is approved. If I recall correctly, the USCIS takes the position that must also actually hold (or be admitted in) H-1B status to be counted.

• Question: “My H1 was picked this year, If it gets approved. How early can I shift to a new company?”
  • Answer: “To play it safe, a couple of weeks after working for the current company. But I would wait until the second H-1B is approved before actually jumping ship.”

• Question: “What are the risks of joining a new organization on FedEx Tracking Number?”
  • Answer: “Assuming you currently hold valid H-1B status, you should wait until H-1B receipt is issued. Better safe than sorry.”

• Question: “Do you recommend starting work on H1B transfer receipt with following scenario:

1. 1. 1. Degree matches job responsibility.
      2. Direct FTE hire.
      3. No Previous RFE on H1B.
      4. Small but reputed company ~50 employees.
      5. Very high base salary Level 4 may be.”

• • Answer: “No, I would wait for H-1B approval to play it 100% safe. Nothing – and I mean nothing – is a guaranteed approval these days” “Extremely unlikely that current company will know that a new company has filed a new H1B petition for you.”

• Question: “I hold an H-1B visa, can I be furloughed?”
  • Answer: “H-1Bs cannot be furloughed legally. It would violate the LCA.” “H-1Bs cannot be furloughed. Hours/pay can be reduced but amended petition must be filed. O-1 can be furloughed but the O-1 employee has a status issue. Still have 60-day grace period.”

• Question: “Do TN Canadians on furlough need to apply for a change of status?”
  • Answer: “Yes, they should if furlough is going to last for a while.”

• Question: “Thanks for help. I’m on H1B and my company put me on a furlough list. I’ll be out of status for 2months. What’s the risk behind that? My lawyer told me to fly outside of U.S. to correct my visa status once back to work. Is it necessary? Should I wait until I have paychecks to transfer h1b visa?”
  • Answer: “You are not considered to be out of status or unlawfully present during the 60 day grace period. You cannot return with the H-1B visa unless you are returning to your H-1B job.”

• Question: “What are your thoughts on H1B holders working under capacity cuts with reduced hours? Do amendments cover cases with <32h weeks?”
  • Answer: “Yes, that’s a material change. Need an amendment.”

• Question: “My wife was asked to a 20% pay cut and make it a 4 day week until June. Does this require an amendment?”
  • Answer: “Yes, if she’s in H-1B status.”

• Question: “I am on H1b and My work hours has been reduced to 4 days a week. Do I still maintain a full time H1B? Anything needs to change?” 
  • Answer: “Company needs to file an amended H-1B petition asap (assuming your pay has been reduced to 4 days per week)”

• Question: “A new employer has filed for an H1B transfer for me. Is it legal to be on a sabbatical/ forlough on my current company and start working for the new one? Or do I need to formally resign before starting the new job?”
  • Answer: “You can start working for new company once H-1B petition is filed by new employer (although I think that you should wait for the approval first). No need to formally resign, that’s your personal call.”

• Question: “I’m currently in my grace period of H1b as I recently got laid off from my company due to revenue loss. What are my options apart from finding new employer ? Is there any kind of extension available for people on grace period. This happened solely bcz of business impact on my firm bcz of covid situation.” 
  • Answer: “You can try changing status to B-2 or F-1 to buy time and then change back to H-1B once you get rehired or get a new job.” “No, if you were already counted in the cap and you haven’t hit your six-yr limit” “You can change from H-1B to B-2. However, you need to consult a competent immigration lawyer for advice. These are not simple, black and white matters.” 

• Question: “Is 60 days grace period per employer, per h1b every 3 years, or per life time?”
  • Answer: “Can only use the 60-day grace period once per H-1B petition.”

• Question: “I am on h1b and am considering working remotely from Canada to help a family member there. Is there a limit on how long h1 can work remotely ?”
  • Answer: “No limit to how much time you can spend abroad as long as you remain on the U.S. payroll”
• Question: USCIS recently announced some flexibility for people whose H1B is expiring and are unable to get it sorted within the 60 day time period. The verbiage on their website spurs the doubt in my mind about what types of situations could qualify to file for an EOS vs COS. For employees who lost their jobs while on an active H1B, they are by default entering a 60 day grace period to find another job. In this situation, can the affected employee file for an EOS which would in effect extend their 60 day grace period to 240? Or is this a misinterpretation of the guidelines given out by USCIS? https://www.uscis.gov/news/alerts/covid-19-delays-extensionchange-status-filings
  • Answer: “To be honest, they didn’t announce anything new. They reiterated existing law. I would file a change of status within the 60 days. I wouldn’t count on USCIS’ kindness.”

• Question: “One of my friend is in India and got H1B picked. Given the travel restrictions and lockdown do you think it could have any effects on filling H1B petition?”
  • Answer: “No effect in filing. Only effect on when he will be able to come to the U.S. assuming the H-1B petition is approved.”

• Question: “Is there any possibility of 60 days Grace on h1 without job getting extended?”
  • Answer: “Nothing substantive being contemplated right now. As you may be aware, this administration is not a big fan of the H-1B program.”

• Question: “My wife has a H1B. 

1. Currently the employer has asked her to apply for leave for Mid March- April end month. How long she can stay without payroll without jeopardizing her H1B under current conditions?
2. Her H1B extension is due on September. Are there any guidelines under covid conditions by USCIS for H1B extension? What should be the right time to apply for extension as currently the employer is thinking to look for apply for extension in June month?
3. Considering her extension due in Sept, can she take a transfer to different company? In that case will she have to apply for extension then or transfer will take care of extension as well?

• • Answer: 1. It is unlawful for employer to ask her to “apply for leave”. That violates the LCA. Assuming the leave is voluntary, there is no specific time limit under law, but it has to be reasonable based on the reason for taking leave.

2. I would apply for the extension now. There is no benefit to delaying.
3. Yes, she can accept a new job offer now. But I wouldn’t quit the current job until the H1B petition is approved through the new employer.” 

• Question: “My wife is a physical therapist and her clinic is closed due to Covid. She is on furlough without pay and is on H1B. Considering the situation will this cause issues with her visa since H1B need to always be paid” 
  • Answer: “It is unlawful to furlough H-1B workers. They are required by law to: 1) pay her full salary, 2) fire her and notify USCIS, or 3) file an amended H-1B petition for reduced hours. She has a 60 day grace period. But after 60 days, she’s in trouble.”

• Question: “My H1 B stamp is on my old passport, it has admit date till 2021. Do I need to go out of the country and re-enter before that date expires and get the stamp on my new passport”
  • Answer: “Your I-94 governs how long you can remain in the U.S.”

OPT

• Question: Currently working on 1-year OPT with EAD ending in June this year. My application wasn’t picked in the H-1B lottery this year( it was my last attempt). Based upon your experience, what are your thoughts on Day-1 CPT/PhD route given it’s a grey area ? How risky is it for the short and long term ?
  • Answer: “Yes, I have seen that scenario many many times. It is legal to pursue CPT from Day 1 as long as it authorized by the school, the program of study you are pursuing, and reflected on your I-20.” “With all due respect to robot.car, you are legally and factually incorrect. It is not only legally permissible, but done all the time and it works. Please provide the legal basis, including regulations and case law, that supports your blanket assertion.”

I- 140

• Question: “I have approved I-140 from previous company. Current company is in process of filing I-140 to capture my existing priority date. I have an offer from new company and is ready to apply for H1b transfer. Will this cause any problem in filing PERM/I-140 by future employer if I switch job now while existing I-140 case is in progress?”
  • Answer: “You have an approved I-140 by company A – correct?
  • You have pending I-140 through company B – correct?
  • You want to switch jobs to company C (while I-140 through company B is pending) and company C will start a new PERM/I-140 – correct?
  • If yes to all three questions, you’re ok as Company C can recapture your priority date from the I-140 by Company A.”

• Question: “I am on H1B and I have an approved I-140. I have about 18 months to my 6 year limit. In case I get laid off, I was thinking of filling for H4 through my spouse’s H1B. Can I apply back for H1b at a later point without going through the lottery?”
  • Answer: “Yes, if you were previously a cap-subject H-1B worker.”

• Question: “To not have any issues with G.C. How long do you need to stay with company after getting I-140.”
  • Answer: “You can port to new employer 180 days after I-485 (not I-140) is pending.”

• Question:  We (My wife and I) already had the green card interview but it is still pending because of EB-3 priority date retrogression and RFE. During this time, when do you think priority dates will go back to normal and how long will it take for USCIS to process the RFE? We are not Indian or Chinese. 2. I’m changing employer and the new employer will file I-485 Supplement J to port my approved I-140. How long do you think this will take?” 
  • Answer: “1. I feel your pain. Lots of clients in this scenario. Nobody know how soon or long priority dates will advance. It’s a month-to-month calculation based on visa usage from the prior month and projected future demand. 2. The porting request is normally adjudicated when I-485 is adjudicated.”

Premium Processing

• Question: “I understand it’s a little hard to predict, so I’m just looking for your estimate here- when do you think we can expect the Premium processing for H1-B transfer to resume, based on the prior experience of it getting suspended? Would you recommend someone to start a new job in a Big-N company just on the transfer receipt?”
  • Answer: “Million dollar question. Nobody knows right now. Best guess is at least 2 months, but that’s just a guess.” “There is no prior experience. Premium processing has never been suspended due to an worldwide pandemic that has no finite end date. No, I would wait for H-1B approval to play it 100% safe.” “No change in policy at this time. You may want to consider a change of status to B-2 or F-1 to buy time”
• Question: “Are new applications for visas other than H1B (eg. L1, E3, H1B1 etc) possible presently? Could a U.S. firm pay an employee working remotely outside of U.S. without visa? (perhaps through a subsidiary branch in another country?)”
  • Answer: “All types of petitions are still being accepted for processing. Yes, that can be arranged as a contractor. But there are tax issues that need to be worked out.”

B-2 Visa

• Question: “Given the pandemic situation, can the duration of stay be extended over 6 months for someone on a B-2 visa? If yes, how long can it be extended? Also, would it impact the travel in the future going forward?”
  • Answer: “You can request another 6 months with USCIS”

• Question: “I lost my job and my 60 day grace period for H1B ended on April 10. As per lawyers recommendation, I filed for a change of status to B2 and am continuing to look for jobs since I am unable to leave.
• Will I face any issues?”
  • Answer: “Only if B-2 is not granted.”

Processing Time

• Question: “Do you know how long takes change employer for a T.N. visa through I-129 (nonpremiun process)?”
  • Answer: “about 6 months under normal times”

• Question: “Currently on E-3 visa, been furloughed and have 2 month to find a new employer. Since premium processing is now suspended, waiting 5 months for transfer according to I-129 processing time will cause me to leave country while I wait (& if I even get an employer to wait). Is there any other option to shorten the transfer time?”
  • Answer: “If you file within the 60 day grace period and LCA validity period commences prior to expiration of grace period, you can remain in U.S. while the new E-3 petition is adjudicated.”

• Question: “I’m eligible to apply for my Citizenship next week through marriage. Do you know how current situation is going to impact approvals and processing times?”
  • Answer: “Won’t affect approval. That’s an issue of law. Processing timeline will be affected, just like everything else in the world right now.”
• Question: “My Husband is a U.S. citizen and I didn’t make it to the H1B this year. We want to consider the marriage based G.C. route to stay together.If my status of last year of OPT is ending in May do I have enough time to apply and get a P.R. without having to get a break in my work? I know that there is a temporary work permit that I could apply for. How long does the G.C. processing take? How long does the permit take to be approved?”
  • Answer: “Depends where you live. In Miami, 5-12 months for interview, under normal times. Takes an average of 5-6 month to get EAD based on marriage adjustment (under normal times). \We are not in normal times.”

• Question: “I’m a dual citizen who petitioned for my foreign wife to join me on a marriage G.C. How drastically do you think the COVID-19 situation slow will things down in immigration? Also will writing the Ombudsman help in any way?”
  • Answer: “It will delay the process by several months. We just don’t know when things will return to “normal” processing schedules. Writing the ombudsman will likely not help as everyone is in the same boat, unless you have an extremely compelling humanitarian situation.”

• Question: “How long do you think non-premium processed T.N. applications will take in this environment?”
  • Answer: “6 months.”

• Question: “Hi. We are green and holders and my wife is abroad right now and there is no flight back. And she is going to be over 6 months abroad in 10 days. How can we make sure that this will NOT lead to any problem for her citizenship application?”
  • Answer: “I think she has a very legitimate reason why she was out longer than 6 months. That being said, USCIS has not changed its policy regarding continuous residence with respect to COVID-based absences. And with this administration, I don’t see them being very helpful or kind”

The bigger picture: Navigating unemployment is tricky enough without having it tied to your immigration status. Immigrant professionals face challenges and circumstances that change daily due to the pandemic.  Bringing clarity, representation, and a voice at the table for 17% of the workforce is a priority. Blind is thankful for Saleh and Associates PA, for taking the time and bringing answers to professionals during this turbulent time in history.