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COVID-19 Immigration-Related Q&A

Because U.S. immigration law is highly dependent upon individual facts and circumstances, the following Q & A is intended as general information only and not as legal advice.

Q. I entered the U.S. using ESTA (the visa waiver program), and my I-94 Arrival/Departure Record will expire before I am able to depart the U.S. Can I apply for an extension of stay?
A. U.S. immigration law does not permit individuals present on ESTA to obtain changes of status or extensions of stay. Individuals may be eligible to obtain Satisfactory Departure from local U.S. Customs & Border Protection agents enabling them another 30 days of stay due. WBD maintains a list of protocols for requesting Satisfactory Departure at specific ports-of-entry.

Q. I entered the U.S. using a B-1 Business Visitor Visa, and my I-94 Arrival/Departure record will expire before I am able to depart the U.S. Can I apply for an extension of stay?
A. Yes, you may be eligible to apply to U.S. Citizenship & Immigration Services (USCIS) for an extension of stay of 6 months. The application should be filed before your current I-94 expires. WBD can assist with this process.

Q. I have an employee on an E-1, E-2, E-3, H-1B, L-1, O-1 or TN visa. The I-94 Arrival/Departure Record will expire before s/he can depart the U.S. What can I do?
A. The company may submit to USCIS a petition for extension of stay on the employee’s behalf. If the petition is received before the employee’s current I-94 expires, the employee may continue to work for you 240 days beyond the I-94 expiration date, pending a decision on the petition for extension of stay. WBD can assist with this process.

Q. I am on an F-1 student visa working pursuant to post-graduation Optional Practical Training. What happens if I become unemployed?
A. You have 90 days of unemployment until you are considered in violation of your visa status.

Q. I am on an F-1 student visa working pursuant to a STEM Optional Practical Training extension. What happens if I become unemployed?
A. You have 150 days of unemployment until you are considered in violation of your visa status. You must also inform your Designated School Officer within 5 days of becoming unemployed.

Q. What happens to foreign national employees’ visa status when an employer implements a reduction in force?
A. An employer may have certain obligations to remain compliant with U.S. immigration laws. See below for a summary of employer compliance requirements for employees in certain visa categories and contact WBD for further assistance:

Visa Status

Employed & Paid

Employed & Unpaid

Termed

E-1, E-2

None

None*

60-day discretionary grace period**

E-3

None

Employer liable for back pay and fines

60-day discretionary grace period**

EAD – Employment Authorization Card (AOS Application to Adjust Status/Spousal/DACA Deferred Action Childhood Arrivals/TPS Temporary Protected Status)

None

None*

None

F-1 OPT/STEM OPT

None

None for OPT/Compensation required for STEM OPT or else employee begins accruing days of unemployment & employer must notify DSO within 5 business days

Violation of status after 90 days/150 days of unemployment; Employer must report termination to DSO within 5 business days

H-1B

None

Employer liable for back pay and fines

60-day discretionary grace period** Return transportation cost

J-1

None

None***

Must depart U.S. immediately

L-1

None

None*

60-day discretionary grace period**

O-1

None

None*

60-day discretionary grace period**Return transportation cost

TN

None

None*

60-day discretionary grace period**

*Could impact a contemporaneous adjustment of status application or petition for extension of stay/renewal if employer unable to pay a salary/wage
**Must still monitor I-94 expiration date to avoid unlawful presence
***Depending on program sponsor, may be required to report nonpayment

Q. What if my company is directing people to work from home and my home is outside of or not within normal commuting distance of the geographic area listed on my H-1B petition?
A. Your company should prepare and file an amended Labor Condition Application with the U.S. Department of Labor and an amended H-1B petition with U.S. Citizenship & Immigration Services unless it is taking advantage of the 30-day short term placement exception. WBD can assist with this process.

Q. What if my company is directing people to work from home and my home is within the normal commuting distance of the geographic area listed on my H-1B petition?
A. Your company should prepare a Notice for you to post at your home in compliance with DOL regulation. WBD can assist with this process.

Q. Because of travel restrictions, my foreign national employee is unable to return to the U.S. at this time. Does s/he require a valid U.S. work visa in order to be employed by me remotely?
A. No. The employee does not need a valid work visa to be employed by a U.S. employer if the employee is not physically in the U.S. As the employer, you will need to ensure, however, that the employee does have appropriate authorization to work in the country in which s/he is located.

Q. Is the Department of Homeland Security relaxing employer obligations to comply with I-9 Employment Eligibility Verification rules?
A. Yes, to some degree. For details, click here.  For further information, contact Womble Bond Dickinson.

Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume X, Number 85

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About this Author

Jennifer Cory, Womble Carlyle Law Firm, Charlotte North Carolina, Immigration LawAttorney

Jennifer Cory leads Womble Carlyle Immigration Solutions, which provides management of inbound immigration services for domestic and international employers and investors. Jennifer has practiced immigration law since 1995 and is certified as a Specialist in Immigration Law by the North Carolina State Bar.

Jennifer’s work focuses on employment-based immigrant and nonimmigrant petitions, including, but not limited to, preparation of treaty investor/trader visa applications, H-1B temporary worker petitions and L-...

704-350-6337
Susan Ramos  North Carolina WBD Immigration Attorney Consular processing Humanitarian Relief  Workplace Compliance Spanish Speaking
Senior Counsel

Susan is an immigration lawyer with over fifteen years of experience assisting individuals, families, and employers in connection with assessing available U.S. immigration options.

Her practice includes preparing and filing individual, family-based, and employment-based petitions, immigrant and nonimmigrant visa applications, and waivers of inadmissibility. She assists with complex consular processing issues, complicated citizenship and naturalization issues, petitions for humanitarian relief, and removal defense. She advises employers regarding worksite compliance, conducting internal I-9 audits and trainings, and negotiating with U.S. Immigration and Customs Enforcement (ICE) regarding employer sanctions. 

A former criminal defense attorney, Susan also advises individuals and employers regarding immigration consequences of criminal conduct. She represents clients before U.S. Citizenship and Immigration Services, U.S. Department of State, U.S. Immigration and Customs Enforcement, U.S. Customs and Border Protection, U.S. Department of Labor, and the Executive Office of Immigration Review. 

Susan is frequently asked to speak at conferences and community events regarding immigration law.

Susan is fluent in Spanish. 

1 704.350.6312