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Our office has been getting a lot of calls from people who are currently in the U.S. on a non-immigrant visa and whose statuses are about to expire.  With so much uncertainty about traveling during the COVID-19 (CoronaVirus) pandemic, they want to know what options they have to stay in the U.S.  This post will discuss two common ways to stay in the U.S. beyond the duration of your current non-immigrant status:  1) Extension of Status; and 2) Change of Status.

Extension of Status

Extension of status is exactly what it sounds like.  It is a request to USCIS to extend your current non-immigrant status.  For example, Nina has been in the U.S. on a B-2 visitor visa for the past five months, and her I-94 record indicated that she is permitted to stay for six months.  This means that she will go out of status in one month.  Nina can submit an application to extend her B-2 status to USCIS.  So long as it is received by USCIS prior to the expiration of her current status, she will be permitted to stay without accruing unlawful status until USCIS makes a decision.  If her application is approved, her B-2 status will be extended to the date requested – or another date as determined by the USCIS officer.  Note that Nina will lose her status if she leaves at any time while the application is pending, or after it is approved.

Change of Status

Change of status is similar to extension of status.  However, instead of extending your current non-immigrant status, you are requesting to change to another status.  For example, Charlie is currently in the U.S. in H-1B status which does not expire for another year.  However, Charlie’s company is going through financial difficulty and he is laid off – causing him to go out of status.  He has a grace period to either depart the U.S. or to change to another status.  Instead of returning home, he decides to enroll in a Master’s Degree program at a local university.  If he is accepted, he can apply for a change of status from H-1B to F-1 student with USCIS.

With COVID-19 paralyzing world airports, and with Trump implementing a travel ban on flights from Europe, many people are asking how this will affect their immigration status.

European Coronavirus travel ban

On March 11, 2020, Trump announced that all travel to the U.S. from Europe’s Schengen Area will be suspended for 30 days starting on March 13, 2020.  This includes the countries of: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

Exceptions to the ban include:  U.S. citizens; green card holders; and spouses, children, and parents of U.S. citizens or green card holders.

Iran CoronaVirus Ban

As of March 2, 2020, Trump limited the entry of anybody who was physically present in Iran during the 14-day period immediately preceding their entry to the U.S.  Exceptions to this ban include: U.S. citizens; green card holders; and spouses, children, siblings and parents of U.S. citizens or green card holders.

China CoronaVirus Ban

On January 31, 2020, Trump limited the entry of those who were physically present in China in the 14-day period preceding their entry to the U.S. Exceptions to this ban include: U.S. citizens; green card holders; and spouses, children, siblings and parents of U.S. citizens or green card holders.

B-1 and B-2 visitors currently in the U.S.

For those who are currently in the U.S. as visitors in B-1 or B-2 status and cannot return to their home countries, they can apply to extend or change their status with USCIS.  If the application is received by USCIS before your I-94 expires, you will be able to remain in the U.S. beyond the expiration date until a decision is made.

On February 24, 2020, USCIS announced that most green card applications and several non-immigrant visa applications will be subject to a new Public Charge Rule.

Under the rule, USCIS may conclude that an applicant is inadmissible if it is “more likely than not at any time in the future to become a public charge.”  More specifically, USCIS believes that the applicant will be more likely than not at any time in the future to receive one or more of the enumerated list of public benefits for more than 12 months (aggregate) in a 36-month period.

The decision will be based on the totality of the circumstances, as subjectively determined by an adjudicating officer.  This means the officer will weigh negative and positive factors, including the applicant’s:

• Age
• Health
• Family status
• Assets, resources and financial status
• Education and skills
• Prospective immigration status
• Expected period of admission
• The sufficiency of the petitioner’s Affidavit of Support

Factors that may find in favor of an applicant likely to be a public charge

USCIS listed several factors that will weigh in favor of a public charge finding, including:

• Insufficient Employment History:  The applicant is not a full-time student, and is authorized to work but cannot show: 1) current employment; 2) recent employment history or; 3) a reasonable prospect of future employment.
• Prior Receipt of Public Benefits:  The applicant has received, or has been certified to receive, one or more public benefits for more than 12 months in a 36-month period, on or after February 24, 2020.
• Medical Conditions:  The applicant has a medical condition that is likely to require extensive medical treatment; or that will interfere with their ability to provide for themselves; to attend school; or to work.  Further, the applicant is uninsured and cannot obtain private health insurance, or does not have the financial resources to pay for reasonably foreseeable medical costs related to a medical condition.
• Prior Inadmissibility:  The applicant was previously found to be inadmissible based on public charge grounds.

Factors that may find in favor of an applicant not to be a public charge

USCIS outlined the following factors as weighing heavily against a finding that the applicant would likely become a public charge:

• Household Income and Assets:  The applicant and their household’s income, assets, or resources and support from a sponsor, is at least 250% of the Federal Poverty Guidelines for the alien’s household size.
• Stable Employment:  The applicant is authorized to work and is currently employed in with an income of at  least 250% of the Federal Poverty Guidelines for a household of the alien’s household size.
• Health Insurance:  The applicant has private health insurance appropriate for the expected period of admission, so long they do not receive subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act to pay for such health insurance.

With the public charge rule being brand new, it will be difficult for attorneys and clients to determine how USCIS will adjudicate these applications in “real world” scenarios.  Until we start seeing real results from real cases, it’s best to be as prudent and conservative as possible in terms of submitting evidence demonstrating that applicant’s meet the “preponderance” standard in proving that they will not likely be a public charge in the future.

USCIS Public Charge Rule

UPDATE: USCIS temporarily suspends Public Charge Rule applications as of July 31, 2020.

As a result of a court order from the Southern District of New York, USCIS will temporarily suspend the enforcement and adjudication of all Public Charge Rule applications.

UPDATE: USCIS announced that the Public Charge Rule will go into effect for applications postmarked on or after February 24, 2020.

USCIS has announced all applications for green cards and non-immigrant visas postmarked on February 24, 2020 or later will be subject to the new Public Charge Rule. Under this rule, those applying for a green card or visa through USCIS will be required to show that they are not likely to become a public charge in the future.

UPDATE: USCIS confirms that medical treatment or preventive services for CoronaVirus (COVID-19) symptoms will not negatively affect their Public Charge analysis in the future.

USCIS has announced all applications for green cards and non-immigrant visas postmarked on February 24, 2020 or later will be subject to the new Public Char

What visa and green card categories are affected by the public charge rule?

Both green cards and non-immigrant visas will be subject to the public charge rule.

For green cards, these include: Marriage-based green cards, family-based green cards, LGBTQ green cards, and employment-based green cards.

For visas, these include: H-1B visas, L-1 visas, O-1 visas, and E-2 visas.

What is the public charge rule?

The public charge rule is split into two parts: 1) whether an applicant has previously taken certain government benefits; and 2) whether an applicant is likely to become a public charge in the future.

Previous government benefits

USCIS defines a “public charge” as someone who has taken one or more public benefits for more than twelve (12) months in the aggregate in the 36 month period preceding the time of application. This means that if an applicant took two benefits in one month, that will count as two months. Keep in mind that this applies to benefits taken on our after February 24, 2020. Public benefits include:

• Federal, state, local or tribal cash assistance for income maintenance
• Supplemental Security Income (SSI)
• Temporary Assistance for Needy Families (TANF)
• General Assistance (GA)
• Food Stamps, aka Supplemental Nutrition Assistance Program (SNAP)
• Section 8 Housing Assistance under the Housing Choice Voucher Program
• Section 8 Project-Based Rental Assistance
• Public Housing under the Housing Act of 1937
• Non-emergency federally-funded Medicaid

The aforementioned do not include:

• Medicaid used to treat an emergency medical condition
• Benefits funded by Medicaid under the “Individuals with Disabilities Education Act”
• School-based benefits to applicants who are at, or below, the oldest age eligible for secondary education as determined under state or local law
• Medicaid benefits received by an applicant who was under 21 years of age
• Medicaid benefits received by a pregnant woman during the 60-day period beginning on the last day of the pregnancy

Certain benefits received prior to February 24, 2020 must still be disclosed, including: Supplemental Security Income (SSI), cash, Temporary Assistance for Needy Families (TANF), General Assistance (GA), and benefits from long-term institutionalization.

Examples of other public benefits that are not subject to the Public Charge Rule include:

• Disaster relief
• Emergency medical assistance
• CHIP
• Special Supplemental Nutrition for Women, Infants and Children
• School Breakfast & Lunch
• Energy Assistance (LIHEAP)
• Transportation vouchers
• Non-cash TANF benefits
• Tax credits (including those under the Earned Income Tax Credit, Child Tax Credit, and Affordable Care Act)
• Pell grants and student loans

Likelihood of being a public charge

The other factor USCIS will examine is whether someone applying for a green card or visa will likely become a public charge in the future. They will be considered a public charged and therefore deemed inadmissible if they are likely to receive public benefits for more than 12 months in a 36-month period in the future. A determination of likelihood of future public charge will be based on the totality of the applicant’s circumstances, and it appears to be based on a “preponderance” showing. USCIS will consider the following factors:

• Age
• General health
• Family status
• Assets, resources, and financial status
• Educational and skill level
• Prospective immigration status (i.e. work visa, student, etc.)
• Expected period of admission (i.e., 6 months versus 3 years)

What proof do I need to show that I will not be a public charge?

It is too early right now to determine how USCIS is going to assess whether an applicant will likely become a public charge. However, the following is a tentative list of documents that those applying for green cards may need to gather under the Public Charge Rule:

• Educational diplomas, transcripts and certifications
• Credit report and credit score
• Documents showing any assets (bank statements, stocks, etc.)
• Documents showing any debts (student loans, mortgage, etc.)
• Proof of health insurance
• Proof of ability to speak English (certificates, diplomas, etc.)

USCIS formally announced significant changes to how it will conduct the H-1B lottery for the upcoming fiscal year 2021 H‑1B cap-subject season.

In the past, all petitioners would be required to submit full H-1B petitions to USCIS on, or within 5 business days of April 1st, for that fiscal year. If USCIS received more than the allotted H-1B visa availability (65,000 for regular cap and an additional 20,000 for the U.S. Master’s Cap), then all of the petitions would be entered into a lottery. Petitioners whose applications were selected in the lottery were notified that their case would go on for further adjudication. Applications that were not received were mailed back to the petitioner and the USCIS filing fees were not cashed.

Under the old system, employers would have to hire and pay lawyers to prepare an entire H-1B petition for submission only to risk not being selected in the lottery.

This year, USCIS is implementing a new electronic registration process that will offer more clarity (and save costs) to employers. Instead of submitting full H-1B petitions on April 1st, employers will submit an electronic registration with USCIS for each employee/beneficiary it intends to sponsor for an H-1B.

The window for employers to register opens on March 1, 2020 and closes on March 20, 2020. USCIS will charge a $10 non-refundable fee for each registered application. USCIS has indicated that it will notify all applicants whether they made the lottery or not by March 31, 2020. If an employer was selected, USCIS will provide details as to when and how the full H-1B petition should be submitted.

USCIS has cautioned employers that they cannot submit more than one registration per intended employee. If there are any duplicate registrations for a single employee, that employee will be disqualified and ineligible for this year’s lottery. However, employers are permitted to submit registrations for multiple employees.

One potential issue with this new systems is the “Cap Gap” rule for F-1 students were are currently on OPT. Under the previous rule, if a student’s OPT expired after April 1st and an employer submitted an H-1B petition on April 1st, then the OPT will automatically extend up until Oct 1st even if it expired earlier. Under the new rule, employers should be aware of when an employee’s OPT expires. If the H-1B petition is not submitted on time, the “Cap Gap” rule may not apply and the employee will go out of status, requiring them to either change their status or to depart the U.S. until a decision is made on the H-1B petition.

Please contact us if you are an employer or employee interested in registering for the H-1B lottery this year.