Immigration Options for the H1b employee under the Covid-19 Pandemic

In an April 28, 2020 report, Bloomberg reported that over 200,000 H-1B employees in the United State may lose their lawful status by June of this year as a result of the ongoing COVID-19 pandemic.

Darren Silver of Darren Silver & Associates, LLP a boutique Business Immigration Law Firm in Los Angeles believes that the Bloomberg numbers may be conservative and that the actual number of H1b employees impacted by the Pandemic could be far worse.Even with a staged re-opening of the economy, most if not all businesses will be impacted by the Coronavirus. The impact may be either directly in terms of challenges to opening up a business that is safe for their customers or indirectly from the impact of customers that are not in a place to spend money on products or services.  The result, unfortunately, will be layoffs in many cases. It will not be surprising if employers become unable to support the myriad of requirements of the H1b, including the pre-Covid-19 prevailing wage salary requirements.

         The Firm has received many inquires from H1b employees who are faced with this exact predicament with their current employer.

A short-term option that we will generally discuss with these impacted foreign nationals is that of the B visa. The B visa is a short term (6 month) visa that is geared towards either a Tourist or a Business visitor to the United States.  The advantage may be to allow the applicant time to pursue other visa or status options in the United States while maintaining status.

E-2 Visa, longer term solution: Investment in the United States

In response to the impending crisis, our firm has developed long-term solutions for H-1B employees.  On April 14, 2020, USCIS provided guidance on extending and changing status during the COVID-19 pandemic. Because many countries have travel restrictions in place, it is likely that laid-off employees cannot return to their home countries during the 60-day grace period. During those 60 days, laid-off H-1B employees can apply for a change of status or an extension of status.

The Change of status option allows an H1b employee to change his or her status from H1b to a new visa category. While most of the employment-based categories require sponsorship, there is an option to find sponsorship through the investor’s own business. The E-2 visa allows an applicant to own, run and manage a business. The E-2 provides continued immigration status to the applicant, his or her spouse and children.

The E-2 visa requires an investment into a business in the United States; the visa has traditionally been popular amongst startup founders and small business owners. The visa requires the investor to invest a “substantial amount” of capital and the business operations must produce more than a “marginal” income; this means that the E-2 enterprise must create jobs for U.S. workers. Unlike the EB-5 visa, there is not a minimum number of jobs that must be created for each investment nor is there a statutory minimum investment amount. However, the E-2 applicant must be a national of an E-2 eligible country.

The E-2 visa provides many advantages to the applicant. First, it allows for the continuation of status. Unlike the H1B visa, which has a limit to the time allowed before the H1b employee must return home, the E-2 may be extended in perpetuity, as long as the business continues as an ongoing concern. Further, the spouse of the E-2 investor will be eligible for a work permit allowing for an open, non-restricted employment opportunity.

Traditionally, an E-2 investor would either start up or purchase an existing business. In the past year, there has been a surge in Franchisee opportunities available to E-2 investors. While some of our E-2 clients will have a business already earmarked, many require assistance from Franchise brokers that can assist the investor with locating a Franchise that is E-2 friendly.

Darren Silver & Associates has specialized in business immigration for over 20 years.  The firm has successfully filed over 4,000 investment immigration applications over the years.

If you are concerned about your current status in the United States and/or are looking for options for your continued status, Mr. Silver can be reached at

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 23 years.