Mar 23 2020

Because U.S. immigration law is highly dependent upon individual facts and circumstances, the following Q & A is intended as general information only and not as legal advice. Please contact the Womble Immigration Solutions Team for case-specific information.

Q. I entered the U.S. using ESTA (the visa waiver program), and my I-94 Arrival/Departure Record will expire before I am able to depart the U.S. Can I apply for an extension of stay?
A. U.S. immigration law does not permit individuals present on ESTA to obtain changes of status or extensions of stay. Individuals may be eligible to obtain Satisfactory Departure from local U.S. Customs & Border Protection agents enabling them another 30 days of stay due. WBD maintains a list of protocols for requesting Satisfactory Departure at specific ports-of-entry.

Q. I entered the U.S. using a B-1 Business Visitor Visa, and my I-94 Arrival/Departure record will expire before I am able to depart the U.S. Can I apply for an extension of stay?
A. Yes, you may be eligible to apply to U.S. Citizenship & Immigration Services (USCIS) for an extension of stay of 6 months. The application should be filed before your current I-94 expires. WBD can assist with this process.

Q. I have an employee on an E-1, E-2, E-3, H-1B, L-1, O-1 or TN visa. The I-94 Arrival/Departure Record will expire before s/he can depart the U.S. What can I do?
A. The company may submit to USCIS a petition for extension of stay on the employee’s behalf. If the petition is received before the employee’s current I-94 expires, the employee may continue to work for you 240 days beyond the I-94 expiration date, pending a decision on the petition for extension of stay. WBD can assist with this process.

Q. I am on an F-1 student visa working pursuant to post-graduation Optional Practical Training. What happens if I become unemployed?
A. You have 90 days of unemployment until you are considered in violation of your visa status.

Q. I am on an F-1 student visa working pursuant to a STEM Optional Practical Training extension. What happens if I become unemployed?
A. You have 150 days of unemployment until you are considered in violation of your visa status. You must also inform your Designated School Officer within 5 days of becoming unemployed.

Q. What happens to foreign national employees’ visa status when an employer implements a reduction in force?
A. An employer may have certain obligations to remain compliant with U.S. immigration laws. See below for a summary of employer compliance requirements for employees in certain visa categories and contact WBD for further assistance:

Visa Status Employed & Paid Employed & Unpaid Termed
E-1, E-2 None None* 60-day discretionary grace period**
E-3 None Employer liable for back pay and fines 60-day discretionary grace period**
EAD – Employment Authorization Card (AOS Application to Adjust Status/Spousal/DACA Deferred Action Childhood Arrivals/TPS Temporary Protected Status) None None* None
F-1 OPT/STEM OPT None None for OPT/Compensation required for STEM OPT or else employee begins accruing days of unemployment & employer must notify DSO within 5 business days Violation of status after 90 days/150 days of unemployment; Employer must report termination to DSO within 5 business days
H-1B None Employer liable for back pay and fines 60-day discretionary grace period** Return transportation cost
J-1 None None*** Must depart U.S. immediately
L-1 None None* 60-day discretionary grace period**
O-1 None None* 60-day discretionary grace period**Return transportation cost
TN None None* 60-day discretionary grace period**

*Could impact a contemporaneous adjustment of status application or petition for extension of stay/renewal if employer unable to pay a salary/wage
**Must still monitor I-94 expiration date to avoid unlawful presence
***Depending on program sponsor, may be required to report nonpayment

Q. What if my company is directing people to work from home and my home is outside of or not within normal commuting distance of the geographic area listed on my H-1B petition?
A. Your company should prepare and file an amended Labor Condition Application with the U.S. Department of Labor and an amended H-1B petition with U.S. Citizenship & Immigration Services unless it is taking advantage of the 30-day short term placement exception. WBD can assist with this process.

Q. What if my company is directing people to work from home and my home is within the normal commuting distance of the geographic area listed on my H-1B petition?
A. Your company should prepare a Notice for you to post at your home in compliance with DOL regulation. WBD can assist with this process.

Q. Because of travel restrictions, my foreign national employee is unable to return to the U.S. at this time. Does s/he require a valid U.S. work visa in order to be employed by me remotely?
A. No. The employee does not need a valid work visa to be employed by a U.S. employer if the employee is not physically in the U.S. As the employer, you will need to ensure, however, that the employee does have appropriate authorization to work in the country in which s/he is located.

Q. Is the Department of Homeland Security relaxing employer obligations to comply with I-9 Employment Eligibility Verification rules?
A. Yes, to some degree. For details, click here.  For further information, contact Womble Bond Dickinson.