Temporary Visas and COVID

Several Presidential Proclamations have been issued this year that suspend the issuance of many types of non-immigrant visas. Such Proclamations include P.P 9984, 9992, 9993, 10041, and 10052. As a result the following individuals may not apply for a U.S. visa at a U.S. Consulate or Embassy abroad until the Proclamations terminate:

• Spouses and children of green card holders (US citizens are not affected) applying at the consulate
• Parents of US citizens applying at the consulate
• Brothers and sisters of US citizens applying at the consulate
• Sons and daughters (meaning over 21 years old) of US citizens applying at the consulate (children under 21 years old of US citizens are not affected)
• Sons and daughters (meaning over 21 years old) of green card holders applying at the consulate
• EB1A extraordinary abilities and their family applying at the consulate
• PERM EB3, PERM EB2, probably NIW employment based and their family applying at the consulate
• EB4 religious workers immigrants applying at the consulate
• H1B and H4 dependents applying at the consulate (try to bring them on B1 then change status) unless they are essential to the United States food supply chain or of national interest
• L1 and L2 applying at the consulate (try to bring them on B1 then change status) unless they are essential to the United States food supply chain or of national interest
• J1 applying at the consulate unless they are essential to the United States food supply chain or of national interest

In addition, those who have been physically present in Iran, the Schengen countries, Ireland, the United Kingdom, and Brazil within the 14 days preceding their entry may not enter the United States, nor visas may issue for these individuals unless the individual qualifies for a national interest exception.

There is no specific timeline for when each Consular post or Embassy will resume routine visa services, although Consulates and Embassies continue to process emergency and expedite visa requests. Applications and petitions continue to be processed normally by the United States Citizenship and Immigration Services (USCIS). Please refer to the USCIS website for more information regarding case processing times. For information regarding operations at the Consular/Embassy level please refer to the individual website of each Consulate or Embassy for updates.

Presidential Proclamation 10052 , which went into effect on June 24, 2020, suspended the entry of  immigrants who present a risk to the U.S. Labor Market During the Economic recovery of the 2019 Coronavirus. This proclamation does not apply to those who are already working inside the U.S. on valid visas.  Those impacted are individuals who are applying for visas in the H category at U.S. Consulates and Embassies abroad including H-1B, H-2A, and H-2B visas. Processing of these visas at U.S. Consulates and Embassies abroad are therefore suspended until December 31, 2020. This Proclamation does not impact those that may have gotten an extension  on their H-2A petition with a supported valid temporary labor certification issued by the Department of Labor and USCIS. H-2A workers are also being allowed to stay in the U.S. beyond the 3 years maximum allowable period of stay, if they received permission on or after March 1, 2020.

Individuals on an H-1B visa currently residing and working in the U.S. must meet certain requirements during COVID-19 to maintain their status. An H-1B visa holder may work from home if they live within commuting distance of the office and if they post a Labor Condition Application at their work space from home. If an H-1B visa holder does not live within commuting distance of their office they may need to ask their employer to file an amended H-1B petition that lists their home as their place of work if they will be working remotely for more than 60 days. Any individual on a H-1B visa who changes their position will need to update their status with USCIS if the job requires different duties. Individuals who are terminated from their job , will have a period of 60 days to submit an H-1B petition for new employment.

Recently, DHS temporarily amended certain H-2A visa requirements during the COVID-19 pandemic. From August 19, 2020 to August 19, 2023, DHS will continue to allow H-2A employees whose extension of stay H-2A petitions are supported by valid temporary labor certifications issued by the Department of Labor to begin work with a new employer immediately after the extension of stay petition is received by USCIS. DHS will apply this temporary final rule to H-2A petitions requesting an extension of stay, if they were received on or after August 19, 2020, but no later than December 17, 2020. The temporary extension of these flexibilities will ensure that agricultural employers have access to the orderly and timely flow of legal foreign workers, thereby protecting the integrity of the nation's food supply chain and decreasing possible reliance on unauthorized aliens, while at the same time encouraging agricultural employers' use of the H-2A program, which protects the rights of U.S. and foreign workers.

USCIS has temporarily amended certain H-2B visa requirements during the COVID-19 pandemic for H-2B workers in the United States in valid H-2B nonimmigrant status on or after March 1, 2020. This temporary final rule effective from May 14, 2020 through May 15, 2023 temporarily removes certain limitations on H-2B employers and workers during the COVID-19 emergency.  The new rule temporarily permits certain flexibilities for H-2B employers seeking workers to perform work essential to the U.S. food supply chain that do not qualify as H-2A, including but not limited to work related to the processing, manufacturing, and packaging of human and animal food; transporting human and animal food from farms, or manufacturing or processing plants, to distributors and end sellers; and the selling of human and animal food through a variety of sellers or retail establishments, including restaurants.

The rule also temporarily allows H-2B workers to extend their period of stay beyond the 3-year limitation, without first requiring them to remain outside of the United States for an uninterrupted period of 3 months. This flexibility applies both to extensions of stay with the same employer as well as extensions of stay with a new employer.

Workers subject to the H-2B petition may start working upon USCIS’ receipt of the new H-2B petitions, accompanied by an attestation to USCIS stating that the alien qualifies for the flexibilities in this rule. The rule grants employment authorization to the H-2B worker for 60 days from the date of the receipt notice for the H-2B petition filed by the new employer or 60 days from the start date of employment indicated in the H-2B petition, whichever is later. This applies to pending cases that were filed on or after March 1, 2020 if an attestation is provided to USCIS.

Finally, employment is not authorized under this temporary final rule if an H-2B petition, which must include a valid TLC and attestation, is not received by USCIS as indicated by Form I-797 (Notice of Action). The 60-day employment authorization associated with the filed petition will automatically terminate 15 days after the date of denial if USCIS denies the petition, or 15 days after the date on which the petition is withdrawn.

The U.S. Department of State announced on July 14, 2020 that it would begin a phased resumption of visa services on a post by post basis. Within this announcement, F visa appointments were prioritized for individuals with urgent travel needs. P.P 10014 does not apply to the visa applicants under the F-1 visa category entering the U.S. for the purpose of studying. DHS and USCIS announced on July 14, 2020 that students in the U.S. on F-1 student visas will not have their F-1 visas revoked for having a course of study that is entirely online, rescinding a previously planned policy made on July 6, 2020. 

Documents needed to enter the U.S.

In order to return to the U.S., international students must have the following documents:

• A valid I-20 with a valid travel signature
• Their valid passport for 6 months beyond the expected return to the U.S.
• A valid F-1 visa stamp (Canadian citizens are exempt from this requirement)
• Proof of funding or financial evidence is recommended
• The fall 2020 class schedule is also recommended
• SEVIS I-901 Fee Receipt is also recommended

Students who are in a country impacted by the 5 geographical Presidential Proclamations (9984, 9992, 9993, 9996, and 10041) are not allowed to return to the U.S. until further notice.

For further updates regarding student visas please visit the Student and Exchange Visitor Program page in www.ice.gov .

Presidential Proclamation 10014 does not apply to applicants who have valid B-1 or B-2 visas. However, individuals who are from the 5 geographical locations that were impacted by the Presidential Proclamations on Novel Coronavirus are not permitted to enter the U.S. Applicants are still able to apply for these visas if embassies are open.

For further information regarding entry into the U.S. please visit www.travel.state.gov .

The Sapochnick Law Firm will continue to monitor developments with respect to policy changes and will post updates on VisaLawyerBlog and in the firm’s Coronavirus Resource Center as additional information becomes available.