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COVID-19 Update: Delays in Extension/Change of Status Filings and Filing of New LCAs for Employees Working from Home

According to USCIS announcement dated April 13, 2020, if nonimmigrants may unexpectedly remain in the United States beyond their authorized period of stay due to COVID-19. The following options are available:

Apply for an Extension.  Most nonimmigrants can mitigate the immigration consequences of COVID-19 by timely filing an application for extension of stay (EOS) or change in status (COS). U.S. Citizenship and Immigration Services continues to accept and process applications and petitions.

If You File in a Timely Manner.  Nonimmigrants generally do not accrue unlawful presence while the timely-filed, non-frivolous EOS/COS application is pending.  Where applicable, employment authorization with the same employer, subject to the same terms and conditions of the prior approval, is automatically extended for up to 240 days after I-94 expiration when an extension of stay request is filed on time.

Flexibility for Late Applications. USCIS can consider delays caused by the COVID-19 pandemic when deciding whether to excuse delays in filing documents based on extraordinary circumstances. Under current regulations and as noted on the Special Situations page, if a petitioner or applicant files an extension of stay or change of status request (on Forms I-129 or I-539) after the authorized period of admission expires, USCIS, in its discretion, may excuse the failure to file on time if it was due to extraordinary circumstances beyond their control, such as those that may be caused by COVID-19. The length of delay must be commensurate with the circumstances. The petitioner or applicant must submit credible evidence to support their request, which USCIS will evaluate on a case-by-case basis.

Flexibility for Visa Waiver Entrants. Visa Waiver Program (VWP) entrants are not eligible to extend their stay or change status. However, under current regulations, if an emergency (such as COVID-19) prevents the departure of a VWP entrant, USCIS in its discretion may grant a period of satisfactory departure for up to 30 days. For those VWP entrants already granted satisfactory departure and unable to depart within this 30-day period because of COVID-19 related issues, USCIS has the authority to temporarily provide an additional 30-day period of satisfactory departure. To request satisfactory departure from USCIS, a VWP entrant should call the USCIS Contact Center.

New LCAs for Employees Working from Home. Team ALO wants to share some important and valuable information concerning your H1B workers. Like all companies, you must be impacted by COVID-19 and the current shelter-in-place/safer at home orders. Due to COVID-19 many companies have furloughed or given remote working options to their employees. If your employees are being allowed to work from home, which is within the same MSA of their previously approved LCA/H1B, then a new LCA with the home location has to be filed. Specially, if your employee is exclusively working from home and has been doing so for over 2 weeks.  Repeat requests to the USCIS for this clarification has till date, not produced any responses, and the law stands in place as before without any exceptions. However, USDOL has allowed posting of the LCA to be done from home locations, therefore giving a nod to the home location updates to LCAs. Additionally, if your H1B employees’ hours or pay has been reduced, then an amendment of the H1B for this reduction has to be filed under regular processing. This could be withdrawn once things are back to normal and the case is pending or approved.

 

This update overrules the previous advice we had provided, on working from home and furloughs without consequence, when some of our clients consulted with us.

 

On March 16, the American Immigration Lawyers Association sent a letter to Ken Cuccinelli, who serves as acting director of USCIS, demanding a number of relief measures for immigrants and workers whose status may be affected by the pandemic. Among them was waiving the requirement that H-1B workers file new petitions due to changes in employment. In a follow-up letter, the organization asked for the suspension of all deadlines and the automatic maintenance of all legal statuses for people on work visas for the duration of the national emergency. On April 3, AILA filed a legal complaint against the agency on the matter. “USCIS has every power to immediately and temporarily toll any and all immigration-related deadlines and expiration of status to the benefit of U.S. employers, lawfully admitted foreign nationals, and the public,” said Jesse Bless, AILA’s director of federal litigation, in an accompanying statement. “Many of those fighting on the front lines — our nurses and healthcare workers — are foreign nationals on nonimmigrant visas.

 

In recent weeks, USCIS has offered flexibility with certain deadlines and announced it would reuse old biometrics for certain types of work authorization requests. However, the agency declined to respond to H-1B-specific questions.

 

Please refer to our latest article on COVID-19. We will regularly update the blog as soon as any new information is available on COVID-19.

Latest Article on COVID-19:

  1. http://www.ahluwalialaw.com/covid-19-update-uscis-to-continue-to-process-ead-extension-requests-despite-application-support-center-closures/ (Date of Publication: April 01, 2020)

Disclaimer

This article aims to provide new information concerning COVID-19 and its effect on the Aliens. This article, under no circumstances, acts as legal advice; therefore, for any further case-specific question, please contact your Attorney or the Ahluwalia Law Offices, P.C. (Team ALO).

 

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