To control the spreading of the coronavirus (“COVID-19”) in the United States, the implementation of travel restrictions and social distancing has resulted in a serious economic downturn: drop in sales, closure of businesses, and loss of jobs. Since the declaration of a national emergency, millions have lost their jobs and incomes. This includes many H-1B workers who now are facing an additional layer of uncertainty – their legal status to work and remain in the United States. This post will briefly explore the difficulty in maintaining proper H-1B status during the COVID-19 pandemic and possible options available to maintain a legal status.
The H-1B visa category provides an opportunity for American employers to hire educated and skilled foreign nationals for their specialized and complex knowledge for a limited period of time, usually up to six years. Obtaining H-1B status is not easy to begin with. It requires an U.S. employer who is willing and able to sponsor, a foreign worker who possesses the education and skill for the specialty occupation, and, in most circumstances unless employed by university of certain non-profits, luck in order to win the annual H-1B visa lottery which is randomly generated. For those who hold H-1B status, in order to maintain such status, they must continue to work in the same occupation for the same employer at the same location(s) and continue to receive the same compensation. Most any change in the employment circumstances would require another approval from USCIS, and such approval is not guaranteed.
If an H-1B worker’s employment is terminated before the authorized period, the H-1B worker only has 60 calendar days as grace period to pursue new employment, change status, or depart the U.S. During the current COVID-19 pandemic, the possibility of being laid off has increased tremendously while the chance to find new employment has decreased. If a laid off H-1B employee cannot find new employment within 60 days, that worker may need to depart the U.S. to avoid accruing unlawful presence in the U.S. However, numerous countries and airlines have applied international travel restrictions to control the spread of COVID-19. This has resulted in the suspension of international flights and route cancellations limiting the availability of flights and driving up ticket prices. H-1B workers might not be able to find available seats to leave the U.S. within the grace period. Then, they may be left in limbo in the U.S. while accumulating unlawful presence. They cannot continue their H-1B status through new employment nor can they go home. Once the 60 days grace period passes, they would be considered unlawfully present in the U.S. Should they remain unlawfully for a period of more than 180 days, they will likely be barred from returning to the U.S. in the future for a period of either 3 or 10 years.
As of now, USCIS has not announce any relief or a policy response to H-1B status termination during the COVID-19 pandemic. H-1B workers need to consider all possible scenarios and available options in advance of potential negative employment actions. For example, other than seeking new employment to extend H-1B status, H-1B workers can consider changing to student status (“F1”) or applying for employment-based immigration visa petitions such as the EB-2 category with a national interest waiver (“EB2-NIW”), which does not require a sponsoring U.S. employer. Regardless, you may wish to consult with an experienced immigration attorney as soon as possible to assess your options.