Q1: I came to the US on ESTA (visa waiver), can I stay beyond 90 days on this trip to avoid traveling by plane during the coronavirus pandemic?
A1: You can try to contact the local office of the U.S. Customs and Border Protection to seek for satisfactory departure to extend your stay within your period of authorized admission. Please email your request to honoluludutyofficer@cbp.dhs.gov with supporting documentation attached (i.e. Doctor’s letter, flight cancellation notification) along with a copy of your passport and entry date and contact information.
Q2: My B1/B2 visitor visa is about to expire in a month, is there any way I can stay beyond the expiration date in the US without jeopardizing my ability to come to the US in the future?
A2: You can file an application to extend your status (Form I-539) along with the required supporting documents, but you need to ensure USCIS actually receives your filing package before the expiration date of your authorized stay, which can be found on the most recent entry stamp in your passport or the online I-94 records which you can find at https://i94.cbp.dhs.gov/I94/#/home.
Q3: My employer filed H-1b electronic registration for me this year. Will there be any change in the H1b process due to the coronavirus pandemic?
A3: On or after March 31, 2020, your employer will find out if your H1b registration is selected. If so, your employer has 90 days from April 1, 2020 to file your H1b visa petition package. Effective on March 20, 2020, USCIS suspended the premium processing (adjudicating case within 15 calendar days upon receipt) for all Form I-129 and I-140 petitions, i.e. employment based work visa and green card petitions. So before we receive further notice from USCIS on resuming premium processing, you will not be able to use premium processing for your H-1b petition. In an earlier announcement, USCIS indicated it would resume premium processing for cap-subject H-1b petitions requesting a change of status from F-1 student status no later than May 27, 2020 and do so or other cap-subject H-1b petitions after June 29, 2020. The coronavirus pandemic may cause further delays.
Q4: We have temporary employees on H-2A and H-2B status, but unfortunately, we are unable to fulfill our contracts with such employees due to the coronavirus pandemic. What should we do?
A4: H-2A and H-2B regulations require that the employer guarantee three-fourths of employment, unless there is an event outside of the employer’s control that makes such employment impossible. COVID-19 mostly likely will be considered an act of God or fall within the list of exceptions as set forth in the regulations to allow the employer to terminate the contracts. However, you, as an employer, continues to be responsible for your obligations under the work contract until receiving a favorable “contract impossibility” determination from the Certifying Officer. So it is very important for you to seek legal counsel’s assistance to timely request for relief under the “Contract Impossibility” provision to the responsible Certifying Officer.
For more information, contact Na Lan at nl@hawaiilawyer.com.
