Coronavirus raises difficult issues for premium processing of H-1B visas

Coronavirus has raised a host of difficult immigration issues for U.S. businesses, including the status of H-1B visa holders and international students, obtaining I-9 verification for new employees and travel restrictions that limit mobility for international personnel, experts say.

News reports say U.S. Citizenship and Immigration Services (USCIS) has announced temporary suspension until April 1 of all in-person activities at local offices, including permanent residence interviews, asylum hearings and naturalization ceremonies and biometric appointments. USCIS will send notices to affected applicants rescheduling.

According to a Forbes and National Law Review report, USCIS has also announced suspension of premium processing on cap H-1B petitions. The new H-1B registration period closes March 20, 2020 at noon.

The NLR report said USCIS is expected to select cap cases the following week, and petitions may be filed within 90 days after selection. USCIS expected to phase in resumption of premium processing, first with change of status from F-1 status by May 27 and then all cases by June 29.

The Forbes report written by Stuart Anderson, executive director of National Foundation for American Policy, said H-1B denial rates have reached historic highs during the Trump administration, according to a NFAP analysis. That raises crucial immigration issues if an H-1B petition is denied, particularly for an existing H-1B employee, the March 16 Forbes report said.

“Employees are in a jam. Many employers now prohibit domestic and international travel, and the U.S. government itself is discouraging travel to certain countries,” the report quoted Lynden Melmed, a partner at Berry Appleman & Leiden (BAL) and former chief counsel for USCIS, as saying in an interview.

“But the employees violate immigration laws if they stay put after an H-1B petition is denied. U.S. Citizenship and Immigration Services (USCIS) could fix this by instructing officers not to deny cases for workers in the U.S. unless there are serious violations of law. USCIS could also make it easier for companies to reapply without forcing the employee to leave the U.S.,” Melmed said.

The Forbes report said BAL has recommended, if an employee becomes out of status, to consider refiling the H-1B petition and asking USCIS to excuse the failure to maintain status based on COVID-19 preventing the employee from departing the country.

To a question, Anderson told this correspondent that any current H-1B visa holder, who is denied an extension, must discuss his or her options with an attorney because there are immigration implications of remaining in the United States out of status.

“USCIS would help mitigate both the health and economic impacts of coronavirus by adopting more flexible rules and issuing clear guidance on what an H-1B professional should do if denied an extension but unable to travel due to coronavirus-related health and travel realities,” Anderson told this correspondent.

According to BAL, a request will be stronger if the company can document that the employee would have been required to travel to a country where COVID-19 is widespread or if the individual or family members are at a greater health risk.

The Forbes report noted that some employers may be uncertain how switching to remote work may affect the status of an H-1B or L-1 visa holder.

“For an H-1B employee, an amended petition or LCA (labor condition application) should not be required as long as the employee is working in the same capacity and within typical commuting distance of the work location on the original petition and LCA,” according to William Stock of Klasko Immigration Law Partners, quoted in the report.

What could be a policy solution for H-1B visa holders who have reached their 6-year limit? Stock was quoted as saying in the Forbes article that for H-1B visa holders who have ‘maxed out, a possible solution is a period of voluntary departure for 30 days for all employees whose nonimmigrant status is expiring within that time, similar to what has been done for the Electronic System for Travel Authorization, under which it is called ‘satisfactory departure’ and is limited to 30 days.

“Persons with voluntary departure would not have employment authorization (unless separately granted in individual cases), but they would remain lawfully present in the United States for the period granted. USCIS would be protecting people from the future consequences, such as visa ineligibility, of what would otherwise be unlawful presence in the United States,” Stock said.

In the Forbes article Anderson said that attorneys believe the difficulty in gaining appointments at U.S. consulates means companies may want to consider switching to USCIS processing for L-1 petitions for intracompany transferees.

“Many U.S. consulates worldwide will cancel nonimmigrant and immigrant visa appointments beginning March 16 and until further notice, including consulates in India, Paris, Dublin and Madrid,” according to the Fragomen law firm.

“Once consulates resume normal operations, applicants will be able to reschedule appointments. Further cancellations and other reductions in consular services are expected in the coming days,” the law firm was quoted as saying.

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