1. Our parents are here on a visit. Their I-94 is going to expire soon. Currently, they cannot travel, and their flights are canceled. What should we do?
You need to file for another visitor visa B-2 extension. Please explain that they could not go back given the current COVID-19 situation and file for it. Once the situation gets better, and flights are resumed, they can go back.
2. I am on H-1B, I am currently laid off. I cannot travel back due to travel suspension. What should I do?
If you are on H-1B and got laid off, or if your project got over, you have 60 days grace period one time during the H-1B period to find another job of the project. If you are able to find, you can apply for an amendment or change of employer petition as required and join the project.
If you cannot find another job, the next option is to see if you are eligible for a change of status. If your spouse is on L-1 or H-1, then change your status to an L-2 or H-4 dependent visa. You can always come back to H-1B status when you find another job.
If you do not have that option, then you need to file for your change of status to B-1/B-2.
What if my I-94 is expired and my H-1B extension is denied, and due to travel suspension, I cannot travel: You can file 539 COS and ask for nunc pro tunc approval. If you can overcome the issues stated in the denial letter, you can file for another H-1B requesting the USCIS to consider nunc pro tunc approval of the case under and state your inability to travel given the COVID -19 situation with documentary evidence You can also file the MTR based on the strength of your case. These measures will not put you in status. Be cognizant of ULP.
AILA has filed a lawsuit against USCIS on these issues and requested relief from USCIS to toll deadlines and status issues that may arise due to the COVID-19 situation.
3. My employer is reducing the salary to all employees across the company. Is furlough allowed? Can the employer reduce the wage?
The employer is not allowed to furlough or reduce the salary. The actual wage or the prevailing wage, as stated in the LCA and the H-1B petition, must be paid. If the actual wage is to be reduced to prevailing wage (if the wage reduction is companywide for all the similarly situated employees), there are two approaches to this, and companies need to make informed decision after discussion with the attorney. Taking a conservative approach this is considered a material change, and an amendment is required to be filed. During extensions USCIS may raise the question of not filing amendment. The wage and hour division has maintained that the wage stated on I-129 has to be paid. Having said that, this is a grey area. Taking a less conservative approach, if proper actual wage documentation is maintained, based on good faith, it is possible to justify the reduction of actual wage to prevailing wage or above without the need for amendment, more particularly in the COVID-19 situation.
With regards to benching and non-payment, the employer is not required to pay for unproductive work, for a reason unrelated to the employment, and the request should be from employee such as vacation or to care for a relative due to sickness, or if the employee’s inability to work such as maternity leave or automobile accident. This COVID -19 situation is not a request form the employee, and therefore the employer has to pay the employee the wage stated in the LCA.
4. I am on a student visa in the USA. Since the campus is closed, can I continue online classes as I cannot attend in-person classes?
Yes, USCIS has made a temporary exception in this situation, and you can take online classes now without affecting the status.
5. I was asked to work from home by my employer or my client. What should I do?
This question has a 2 part response.
- If your home is within the same MSA – Commuting distance, there is no need to file LCA or amendment. However, you have to post the LCA at your home in two locations, and the same should be posted in the public access file.
- If the work location or your home address is not within the MSA (commuting distance), you need to file an LCA. A short term placement for 30 days in a year is permissible without an amendment. If you are going to work for a longer time, then you need to file an amendment within 30 days.
6. My employer is reducing the salary to all employees across the company. Is furlough allowed? Can the employer reduce the wage?
The employer is not allowed to furlough or reduce the salary. The actual wage or the prevailing wage, as stated in the LCA and the H-1B petition, must be paid. If the actual wage is to be reduced to prevailing wage (as the wage reduction is company wide for all the similarly situated employees), then it is considered a material change, and an amendment is required to be filed.
The employer is not required to pay for unproductive work, for a reason unrelated to the employment, and the request should be from employee such as vacation or to care for a relative sue to sickness, or if the employee’s inability to work such as maternity leave or automobile accident. This COVID -19 situation is not a request form the employee, and therefore the employer has to pay the employee the wage stated in the LCA.
7. Can my employer reduce the working hours?
Yes, if the hours are 35 hours or less in a week, then your employer needs to amendment the H-1B to part-time H-1B, and once you file, you can start the part-time employment.
8. My case is already selected in premium processing and currently has an RFE. Now that the premium processing is suspended, will my case be resumed in premium processing when I respond to RFE?
Yes, once your case is selected, your case will be processed under the premium processing guideline, and you will get the decision within 15 days once you respond to the RFE.
9. I am in H-1B and am I eligible for unemployment insurance. My spouse has H4 EAD. Is she eligible for unemployment insurance if I maintain status? Will there be a public charge?
First of all, unemployment insurance is not considered a public charge. However, H-1B may not be eligible for unemployment. You should look in the state rules regarding unemployment as the state controls the unemployment benefits. Normally H-1B employees are not eligible for unemployment benefits as they can work only with sponsorship. They are not available for future work without requiring sponsorship.
H-4 EAD, on the other hand, does not require sponsorship. However, the H-4 status is tied to H-1B sponsorship, and unemployment insurance can be only for the period they are eligible for (expiry of H-4/H-4 EAD). Again, this is controlled by states, and each state varies in requirement. This needs to be carefully analyzed.
10. Being on H-1B, am I eligible for the stimulus package, and will it be considered a public charge.
This will not be considered as public charge as this is provided as a tax credit, and tax credit is not considered under public charge rule.
11. Is there any relief on RFE deadlines?
USCIS has announced that any RFE, NOID, NOIR dated March 01, 2020, to May 01, 2020, will have 60 days extension from the deadline mentioned in the RFE/NOID/NOIR.
12: I need to extend my H-4 EAD. Can I sign electronically: What about biometrics?
USCIS has announced that it will temporarily accept an electronically reproduced signature. Also, a copy of the wet-signature will be acceptable. You can sign the forms and fax or email, which will be acceptable by USCIS.
With regard to biometrics, USCIS has stated that it will reuse the previously submitted biometrics.