Frequently asked questions: COVID-19 and immigration matters (updated)

The below FAQ responses include general advice from Garfinkel Immigration Law Firm and are based on the current state of the law, absent further guidance and revised policies from the Dept. of Homeland Security, Dept. of State and Dept. of Labor.

Further, not all advice may apply to you and your specific situation. As this document serves as general advice to frequently asked questions, it may not be applicable to you and your situation. You should consult with Garfinkel Immigration Law Firm for relevant advice on your specific set of facts and circumstances.

Garfinkel Immigration Law Firm is continually monitoring the evolving situation and its impacts on immigration matters and will advise if action is needed in your particular case. For the most current and up-to-date information, please sign up for Garfinkel Immigration's client alerts and newsletter and follow the Firm on social media (LinkedIn, Facebook, Twitter).

When do you expect Consulates/Embassies to resume visa interview appointments?

The Department of State has ceased visa services for the foreseeable future and has not committed to a timeline for resuming operations. It will depend on the evolving nature and impacts of the COVID-19 situation and travel restrictions.

Are we expecting the processing time for the green card process to increase?

USCIS has temporarily closed offices and suspended in-person interviews through at least June 3. In its announcements, USCIS has indicated that it is uncertain on the timeline for rescheduling impacted interviews. As a result, we anticipate delays in issuance of green cards unless USCIS waives the in-person interview requirement during the COVID-19 crisis.

I am in the United States pursuant to ESTA. I cannot leave before the expiration of my authorized stay because of travel restrictions or self-isolation related to COVID-19. What must I do?

You should contact Garfinkel Immigration Law Firm for advice, which depends upon your specific circumstances. There is no provision under U.S. law to extend the stay of a foreign national who was admitted under the Visa Waiver Program/ESTA. For those who are in the U.S. pursuant to ESTA and are unable to depart timely due to emergent circumstances, they should generally request Satisfactory Departure from U.S. Citizenship and Immigration Services (USCIS) or Customs and Border Protection (CBP). If granted Satisfactory Departure, you would be granted an additional 30-day period of lawful immigration status. You should obtain advice from Garfinkel Immigration Law Firm on procedure for requesting Satisfactory Departure, as the ports of entry are not all currently handling these requests consistently.

I am in the United States pursuant to B-1/B-2 (visitor status). My visitor status is expiring but I cannot leave because of travel restrictions or self-isolation related to COVID-19. What must I do?

You should contact Garfinkel Immigration Law Firm for advice, which depends upon your specific circumstances. In most cases, for those whose B-1 or B-2 status is expiring, it will be recommended that you file an application through U.S. Citizenship and Immigration Services (USCIS) to extend your visitor status. These applications should be filed before your current B status expires. You are permitted to remain in the U.S. lawfully while the applications are pending with USCIS.

I am in the United States pursuant to J-1 status. My status is expiring but I cannot leave because of travel restrictions or self-isolation related to COVID-19. What must I do?

You should contact Garfinkel Immigration Law Firm for advice, which depends upon your specific circumstances. Generally, J-1 visa holders have a 30-day grace period from the date their J-1 program ends (per DS-2019). If they are unable to depart the U.S. before the end of their 30-day grace period, they should either request an extension of their J-1 program or file a change of status application through USCIS to B-2 visitor status.

I am on a temporary expat assignment in the U.S. on an E-2, L-1 or TN nonimmigrant visa. What if my assignment ends before I am able to depart the U.S.?

If your I-94 will expire when your assignment ends, you will either need to (1) file an application to change status to B-2 visitor status; or (2) file an extension of your current nonimmigrant visa application which would require you to extend your assignment in the U.S. and continue working pursuant to the terms and conditions of your nonimmigrant visa classification. Either application should be filed with USCIS prior to your assignment end date and I-94 expiration date.

If your I-94 will still be valid beyond the date of your assignment end date, you should either (1) file an application with USCIS to change status to B-2 visitor status before your assignment end date; or (2) have your assignment extended in the U.S., which would allow you to continue working pursuant to the terms and conditions of your nonimmigrant visa classification for the remaining duration of your I- 94/nonimmigrant status.

What should I do if I'm in H-1B status and am telecommuting from a location different than what was listed on my H-1B approval/LCA?

If you have recently changed your worksite locations, but remain working within commuting distance to the office, you should post a copy of the certified LCA at your home for 10 consecutive business days (not including weekends and holidays). You should then notify your respective contact or your HR Manager of the dates and place of posting. Please refer to the below question for further discussion on "commuting distance."

For H-1B visa holders who posted LCAs at their homes due to the change in worksite, what does "commutable distance" mean?

The law does not provide a rigid measure of distance which constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas (e.g., normal commuting distances might be 20, 30 or 50 miles depending on the area). If the place of employment is within a Metropolitan Statistical Area (MSA) or a Primary Metropolitan Statistical Area (PMSA), any place within the MSA or PMSA is deemed to be within "normal commuting distance" of the place of employment. If you are telecommuting at a location which is outside of the MSA of your company worksite (per the approved LCA/I-129), you should contact your HR Manager and Garfinkel Immigration Law Firm to evaluate and discuss any required action.

If I am an H-1B visa holder who is telecommuting at a location outside of my company worksite MSA for more than 30-days, how will it impact my temporary H-1B status?

If Garfinkel Immigration Law Firm determined that the "short-term placement" provisions apply to your specific situation (and have advised you accordingly), and if you anticipate telecommuting outside of your MSA for more than the permitted 30-60 days, your employer must file an H-1B amendment on your behalf before the end of the 30-60 days. Otherwise, it may generally be considered a violation of your H-1B status.

As a reminder, if it has been advised that these "short-term placement" provisions apply to you, you may not exceed 30-60 days of telecommuting/working outside of your MSA within the one-year period. Please note that this provision/situation/advice does not apply to all H-1B holders and should not be relied upon unless you have held such discussions with Garfinkel Immigration Law Firm and your employer. Garfinkel Immigration Law Firm will evaluate your specific circumstances and advise accordingly if you inform them that you are currently telecommuting/working outside the MSA.

As a temporary visa holder, how does a pay reduction impact my immigration status?

A pay reduction alone does not generally trigger a maintenance of status issue for nonimmigrant visa holders. In the event a pay reduction does arise as a maintenance of status issue for H-1B visa holders in the future, it can typically be cured by a trip outside the U.S. to a U.S. Consulate or Embassy.

Will a pay reduction have any negative effects on my ongoing labor market test or my green card approval?

Generally, no. The green card is for future, prospective employment and the associated wage requirement begins at the time of green card issuance.

My petitioner/sponsor has a reduction in pay and I have a pending family-based green card case. How is that going to impact my green card application?

Generally, the affidavit of support is adjudicated at the National Benefits Level and often is not an issue that is brought up at the interview stage. However, you could be asked for additional evidence while the case remains at the service centers before it is sent to the local field office for interview. In this case, you are given the opportunity to provide proof that the sponsor/joint sponsor still meets the income requirements to maintain you above 125 percent of the poverty guidelines or you are given the opportunity to submit evidence of your own personal assets or provide USCIS with proof of another joint sponsor. Of course, each individual case is different, and you should consult with Garfinkel Immigration Law Firm if you receive a request for evidence.

As a temporary visa holder, am I eligible to receive a stimulus check? If I have an undocumented family member, am I eligible to receive a stimulus check?

The CARES Act provides for the issuance of one-time payments, called recovery rebates (or commonly known as "stimulus checks") to help individuals recover from the economic impacts of the COVID-19 pandemic. The CARES Act excludes "nonresident aliens" from eligibility to receive a stimulus check. "Nonresident alien" is defined by the IRS as any immigrant who does not have a green card and hasn't passed the substantial presence test. As this determination is a matter of tax law, you should consult with a tax professional for questions on your eligibility under the CARES Act. Further, those who file their taxes using an Individual Taxpayer Identification Number (ITIN) are not eligible for a recovery rebate. Moreover, the CARES Act denies the rebate to an eligible individual with a Social Security Number if the individual filed a joint return with a spouse who has an ITIN or filed a return with a qualifying child who has an ITIN. There is a limited exception for adopted children and military families.

At this time, there are at least two federal lawsuits seeking a nationwide injunction blocking the restrictions on stimulus payments.

As a temporary visa holder, am I eligible to apply for unemployment benefits?

Eligibility for unemployment benefits will depend on your respective state. You should confirm with your respective state agency. Please refer to the below question for further discussion on acceptance of unemployment benefits.

Will governmental benefits such as stimulus check or unemployment assistance due to COVID-19 have any negative impacts on my and my spouse's ongoing green card processes (i.e. status maintenance/public charge argument)?

Means-tested benefits, such as unemployment assistance, are not relevant to the government's public charge assessment for nonimmigrant visa holders and green card applications. Similarly, we do not anticipate receipt of the government's stimulus check (if you are eligible) to impact the public charge assessment in these situations.

The government has not released guidance as to how unemployment assistance, as a result of COVID-19, will impact maintenance of status for nonimmigrant visa holders including those on H-1B, E-2, L-1 and TN visas. Absent government guidance at this time, the best thing to do (if at all possible) would be to avoid taking unemployment assistance (and take PTO instead, if possible) in order to avoid risk that the government will view the unemployment benefit as an impact to your maintenance of status (i.e., by not being employed pursuant to terms and conditions of your visa). If it is not practicable for a nonimmigrant visa holder to not take unemployment assistance as a result of the COVID-19 situation, there is a defensible argument that it did not sever the employer-employee relationship, if the employee is still receiving company-wide benefits and returns to work after a temporary period of time. Further, before applying for future immigration benefits, such nonimmigrant visa holders may have the option to "cure" such a violation of status by departing the U.S. Garfinkel Immigration Law Firm recommends maintaining documentation of your employer's COVID-19 policies and procedures, as well as a copy of your municipality (county/state) shelter-in-place orders, if applicable. These documents may be presented in the future, if ever challenged by the government, as part of the defense.

I am a valid green card holder. If I receive unemployment assistance or the government's stimulus check, as a result of COVID-19, will it impact my future green card renewals and eligibility for U.S. citizenship?

Generally, no, unemployment assistance and receipt of the stimulus check, alone, would not impact your future green card renewals nor eligibility for U.S. citizenship.

If I am laid off due to COVID-19 and reduction in workforce, what happens to my green card process?

This depends on several factors and should be assessed and advised upon on a case-by-case basis. Generally speaking, the employment-based green card requires a continuing offer of future, permanent employment.

Does the President's Executive Order, issued on April 22, 2020, impact my immigration matters?

The President's Executive Order, issued on April 22, 2020 and effective at 11:59 p.m. on April 23, 2020, has a very narrow impact. The Order, with few exceptions, extends to certain foreign nationals seeking entry into the United States for the first time as Immigrants -- i.e., those entering the U.S. from abroad as U.S. permanent residents (green card holders). This is a very narrow set of foreign nationals. It DOES NOT apply to nonimmigrant visa holders, such as H-1Bs, L-1s, TNs and other temporary visa categories, nor does it pertain to current U.S. permanent residents (green card holders). The Order also does NOT affect individuals who are in the U.S. applying for adjustment of status to become U.S. permanent residents.

As of the date of this FAQ, the previously issued travel bans are still in effect which prohibit certain individuals from entering the United States due to the fact they were recently in a country that has experienced a high rate of contagion of the COVID-19 virus. In addition, the U.S. consular posts have still ceased processing visas as of March with the exception of visas needed by individuals to travel to the U.S. for emergencies or for essential work, such as farm workers and healthcare professionals. The Department of State has not announced nor confirmed when it plans to resume visa service operations.

It is possible there will be additional immigration restrictions in the future as the Executive Order directs the Secretaries of Labor, Homeland Security and State to review nonimmigrant programs and recommend other measures, as appropriate, to protect U.S. workers. Of course, we continue to monitor these and will notify you accordingly.