AUTOMATIC EXTENSION OF CERTAIN EADs INCREASES TO 540 DAYS

USCIS has announced a temporary final rule increasing the automatic extension period for certain employment authorization documents (EADs) from 180 days to 540 days.

The rule applies to eligible workers with pending renewal applications filed on or after October 27, 2023, and to those who file renewal applications between April 8, 2024, and September 30, 2025.

Eligible workers include, but are not limited to:

• E-1/2/3 spouses (A17);
• L-1 spouses (A18);
• Certain H-1B spouses; and
• Workers with pending Adjustment of Status applications (C9).

A full list of the eligible categories may be found on the USCIS website here.

The temporary final rule follows a previous measure from 2022 that increased the EAD automatic extension period for workers with renewal applications filed before October 27, 2023.

USCIS estimates the temporary final rule will benefit 800,000 workers and 60,000 to 80,000 employers by preventing prevent lapses in work authorization.

From now until June 7, 2024, USCIS invites comments from the public on whether the automatic extension period for EADs should be permanently increased to 540 days or whether a different solution should be implemented.

MU Law encourages workers with pending EAD renewal applications to contact their MU immigration attorney to determine if they qualify for the automatic 540 EAD extension.

Please refer to the USCIS press release for further details. Comments may be submitted on the Federal Register until June 7, 2024.

FAQ REGARDING PRESIDENT TRUMP’S RECENT VISA BAN

President Trump issued a Presidential Proclamation stop the issuance of H-1B, L-1, J-1, and H-2B and dependent visa stamps at Embassies until December 31, 2020.  For a detailed analysis of the visa of the Proclamation and the visa classifications impacted, please review our previous blog post.

On our June 30, 2020 webinar we reviewed several situations in which visa holders may now find themselves due to the Proclamation.  Below is an FAQ to help employers and employees navigate travel and visa issues under the Proclamation.

Q: My employee is in the US on an H-1B right now.  The employee does not have a valid visa stamp in her passport.  Can the employee leave the US?

A: NO – H-1B workers who are in the US and do not have a valid visa stamp should not travel outside the US.  Without a valid visa stamp, the worker will not be allowed back into the US.

Q: I have a valid visa stamp in my passport.  Can I travel overseas?

A: YES – Those who are in the US and have a valid visa stamp can travel abroad, provided they return to the US before the expiration of their visa stamp.

Q: My employee is overseas and had an appointment at the Embassy to get a visa stamp in July 2020.  Will my employee be able to return to the US?

A: NO – Visa stamps in the effected categories will not be issued until after January 1, 2021, or perhaps later.

Q: My employee’s spouse and child are outside the US for their regular summer visit to their home country.  The spoues and child were able to visit the Embassy in May and obtain new visa stamps.  Will my employee’s spouse and child be able to return to the US?

A: YES - The spouse and child can enter the US if they have valid visa stamps in their passports.

Q: My employee is abroad right now and does not have a valid H-1B visa stamp in his passport.  However, he does have a valid B1/B2 tourist visa stamp in his passport, can he travel to the US on his B1/B2 stamp?

A: MAYBE - but this is not recommended.  The employee cannot work in tourist status so a change of status to H-1B would have to be filed once the employee enters the US.  The employee cannot return to work until this change of status is approved by the USCIS.

Q: My employee currently holds a green card.  She is outside the US and plans to return in July 2020.  Can she return on her green card?

A: YES – the April Proclamation exempts US Legal Permanent Residents from the ban.

Q: My company has filed a green card case for our future employee who is a nurse.  We are a staffing company and do not yet know at which of our client sites the nurse will be assigned to work.  Can the nurse enter the US?

A: MAYBE – Under current interpretation, the nurse may enter the US on a green card for any reason.  Later this summer, the Trump Administration may narrow the ban and require nurses to be treating patients who are currently hospitalized with Covid-19.

Q: My employee is currently in the US working for my company on OPT as an F-1 student.  My company has filed an H-1B for this employee which was selected in the H-1B lottery and is currently in process with the USCIS.  Will the H-1B be impacted by the ban?

A: NO – because this is a change of status from F-1 to H-1B, the employee will not be impacted.  However, the employee should not travel outside the US, as he will not be able to get an H-1B visa stamp and return.

Q: My employee is in the US on an H-1B and has no plans to travel.  Can I sponsor this employee for a green card?

A: YES – the there is no prohibition against filing green card cases from inside the US.  Employees can still “adjust status.”

Q: My employee holds an H-1B that will expire later this year.  Can I file an extension of the employee’s H-1B status?

A: YES – the there is no prohibition against filing for an extension, amendment, or transfer of an H-1B.

TRUMP ISSUES WIDE RANGING EXECUTIVE ORDER BANNING NEW LEGAL EMPLOYMENT BASED IMMIGRANTS UNTIL 2021

Last night, President Trump updated and expanded his April Presidential Proclamation that had banned legal immigrant visas for 60 days.  Last night’s ban extends the April legal immigration ban through December 31, 2020 and adds many temporary employment-based nonimmigrant visas, including H-1Bs, L-1s, J-1s, and H-2Bs. 

It seems certain that the President will be sued and so any information contained here is subject to the outcome of the lawsuits.

The ban effects many types of employment-based immigration, such as:

Green Cards (Immigrant visas) Consular Processing. 

All Consular Processing green cards continue to be banned, as they have been since April.  There are a few exceptions:

• Permanent Residents of the US;
• Healthcare workers and their immediate family members (including those family members traveling with the healthcare worker and those family members coming to the US at a later date);
• Other individuals coming to the US to perform work essential to combating, recovering from, or alleviating the effects of Covid-19 and their immediate family members (including those family members traveling with the healthcare worker and those family members coming to the US at a later date).
• Spouses and children of US Citizens;
• EB-5 investors;
• Individuals who are entering to assist law enforcement or who are members of the US Armed Forces;
• Special Immigrants in the SI or SQ Class and their family members; and
• Any person whose entry is in the national interest of the US as determine by the Secretary of State or Secretary of Homeland Security.

Green Cards (Immigrant visas) Adjustment of Status

No effect whatsoever.  Many Adjustment of Status interviews, of course, have been delayed because of COVID-19, although we have seen that the USCIS is approving some employment based green cards without an actual visa interview.

H-1B, L-1, J-1, and H-2B visas

• Beneficiaries approved for H-1B and L-1s will not be allowed to enter the US unless they currently have a valid visa stamp, even if they have an approved I-797.
• H-1B and L-1 visa stamps cannot be granted at embassies or consulates unless the H-1B or L-1 is for one of the exemption categories below. 
• If you have an H-1B or L-1 approval and you are in the US, you should not travel outside the US unless you already have a valid H-1B visa stamp in your passport and you intend to return to the US prior to the expiration of that visa stamp.
• H-1B and L-1 amendments, extensions, and transfers continue to be permissible.
• H-1B cap petitions that are based on a change of status (e.g. F-1 to H-1B) should be approved with a new I-94 card for the H-1B status.  The ban does not prohibit or effect the change of status, however, individuals changing status to H-1B should not leave the US after October 1 as they will not be able to return without a valid H-1B visa stamp.  
• Similar prohibitions apply to J-1 and H-2B visas, although the J-1 visa ban is limited to interns, trainees, teachers, camp counselors, au pairs, and summer work programs.  Other J-1s may obtain visas and enter the US.
• The ban also applies to the H-4, L-2, J-2 dependent classifications.  Spouses and children in the US as dependents should not travel abroad unless each family member has a valid visa stamp in their passport.  Dependents who are currently abroad will not be allowed to enter the US unless they currently have a valid visa stamp.

 Exemptions to the H-1B, L-1, J-1, and H-2B nonimmigrant visa ban

The visa ban does not apply to:

• any lawful permanent resident of the United States;
• any alien who is the spouse or child of a United States citizen;
• any alien seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
• any alien whose entry would be in the national interest as determined by the Secretary of State or the Secretary of Homeland Security.

National Interest Entry Requests

The Proclamation allows for exemptions to the nonimmigrant visa ban if the Beneficiary is one of several categories deemed by DOS or DHS to be “in the national interest”.  It is expected that the DOS and DHS will issue details about these exemptions and the process to request an exemption.  The Proclamation’s named categories include those who:

•  are critical to the defense, law enforcement, diplomacy, or national security of the United States;
• are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;
• are involved with the provision of medical research at United States facilities to help the United States combat COVID-19;
• are necessary to facilitate the immediate and continued economic recovery of the United States; or
• are children who would age out of eligibility for a visa as a result of the visa ban.