COVID-19 Immigration Updates

Our team remains available for our clients throughout this time of crisis. We understand that our clients face uncertainty as to the health and financial wellbeing of their loved ones; our goal is to do what we do best and alleviate any stresses that may arise from the immigration system. It is clear by now that the COVID-19 pandemic is creating unprecedented issues in the immigration law sphere. We have summarized some key issues affecting our clients below; please note that this is an overview of the policies in place. Should you need additional assistance, we are one phone call or email away:

ESTA Expiration: Customs & Border Patrol have made accommodations for satisfactory departure for those in the United States on ESTA. Satisfactory Departure allows CBP to extend the lawful stay of individuals in the United States on ESTA for a period of 30 days if there is are exceptional emergency circumstances preventing their timely departure. Each point of entry has different policies regarding satisfactory departure, so it is best to consult with your immigration attorney before contacting the CBP deferred inspection site.

B1/B2 & Extension/Change of Status: Unfortunately, satisfactory departure has not yet been extended to individuals on B1/B2 visas. However, USCIS has explicitly stated that they will take “special situations” into consideration when adjudicating extensions or changes of status if the underlying reason for that extension or change of status is a “special situation” that prevented your planned and timely departure. This is good news for individuals whose lawful stay is expiring soon, and they cannot return to their home country (due to travel bans, cancellation of flights, dangerous situations, etc.).

If your status expired and you made a good-faith effort to return to your home country, our recommendation is that you start gathering evidence that: 1) you made a good-faith effort to find flights back home, and 2) that your home country has shut down ports of entry (if applicable). If you can prove the above two points, you may have a good chance with a Nunc Pro Tunc action that can be filed along with your extension or change of status.

CARES Act: The CARES Act is the $2 trillion stimulus package congress passed in response to the economic downturn that has resulted from the COVID-19 pandemic. Non-resident aliens have explicitly been excluded from relief checks. Furthermore, foreign nationals must provide a Social Security Number or an ATIN (Adoption Taxpayer Identification Number) to apply for relief checks; this can potentially affect certain foreign nationals, including the spouses of H-1B visa holders.

 As many of our clients are small business owners on E-2, EB-5, or L-1A visas, we understand that this crisis is likely negatively affecting their business. Luckily, small business owners who are foreign nationals may apply for small-business relief under the CARES act (namely the Payment Protection Program (“PPP”)which is being administered by the Small Business Administration). Therefore, we encourage small business owners to seek relief under these programs even if they are not U.S. citizens or permanent residents. It should be noted that use of this relief will likely not negatively affect foreign nationals subject to USCIS’s new public charge rule as these SBA loans.

H-1B Visa Holders: H-1B visa holders are permitted to work from home as long as they are doing so from the same Metropolitan area that the worksite (as designated in the LCA) is located. If the H-1B worker is transitioned from full-time employment to part-time employment, it may be considered a “material change” and thus may warrant the filing of an amended petition. If the H-1B visa holder is laid off, he/she has 60 days to leave the country. If this becomes impossible due to current country conditions, our advice is that you contact an immigration lawyer.

Darren Silver & Associates is an award-winning boutique immigration firm based in Los Angeles that has successfully represented both multi-national companies and high-net-worth individuals for over 25 years.