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Updated on 15.10.2021
In the light of the corona crisis, our US Visa Service team is working hard to secure the legal stay of remaining foreign employees in the United States. At the moment we are mainly in constant dialogue with companies in order to obtain National Interest Exceptions for important and urgent travel to the United States despite the US entry bans.
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Since the end of January 2020, entry into the United States has been very restricted. Previously planned employee deployments to U.S. locations as well as assembly and project work have therefore been postponed indefinitely.
Now, the White House announced it will eliminate the Travel Ban beginning Nov. 8, 2021, and allow all fully vaccinated foreign travelers to re-enter the United States.
Until then, the National Interest Exceptions (NIE) created by the US authorities will provide some relief. Upon application, certain persons affected by the US entry ban, whose entry is of national interest to the USA, can enter the United States. We help you to obtain a National Interest Exception. Contact us now!
Employees the US during the Corona Crisis
Due to travel regulations and limited consular activities, many companies face two key issues with expatriates in the United States:
Provide immigration security for (often critical) personnel and their families remaining in the U.S.; and
withdraw personnel currently in the U.S. in a timely manner prior to the expiration of their authorized residency status.
In order to avoid overstay and / or illegal employment of your employees, it is important to secure the legal basis for the residence permit in the USA. In this context, the residence status is elementary.
Depending on the residence permit for the US, foreign persons can legally stay in the US for several months or years and possibly also work there. There is a distinction here between the visa applied for and the residence status granted upon entry (= I-94 entry form).
A US nonimmigrant visa allows entry into the US
Furthermore, a non-immigrant visa is only valid for a limited period of time (= expiration date on the visa). The US Visas formally allows foreign employees to enter the U.S. for a specific purpose during a specific period of time.
The so-called residence status is given to the USA traveler upon entry. The status determines the details of the stay in the USA:
Length of stay: How long are you actually allowed to physically stay in the United States on the visa?
Status: Under what status, i.e., for what purpose, may the individual be in the US?
The status is verified by means of an entry stamp in the passport at the border and electronically in the I-94 Entry form documented. In this context, the approved residence status often differs from the validity of the U.S. visa in the passport - the status may be granted for a shorter or longer period. Depending on the visa category, the maximum residence status to be approved varies.
As an example: B-Visa are usually issued for ten years and allow a maximum residence status of 180 days. E-visas, on the other hand, are usually issued for five years, but the maximum residence status is two years per entry.
The status therefore depends on the visa category, but also partly on other factors, e.g. with the F-1 Visa from I-20, at the L-1 Visa from I-797 and also the period of validity of the passport or the status of the main applicant. Therefore, the specific facts of the case must always be examined in detail.
We strongly recommend that all our companies check the following: What is the current status of your employees and their family members in the USA? And, in this context, how long has the specific residence status been approved or still valid?
Primarily, persons whose maximum permitted duration of stay is nearing its end in a timely manner should seek solutions. In particular, this involves,
You can check the official status of your employees online on the I-94 website ("Get most recent I-94"). However, you will need the current passport information of your employees.
The current I-94 features the following:
Attention: The date is given according to the American system, i.e. MM / DD / YYYY. By the way: Persons who are in the USA under J, F or M status often find D/S noted instead of a specific date. This stands for Duration of Status, i.e., these individuals are allowed to stay in the US as long as they are listed on the I-20 or DS-2019 form noted.
The decisive factor for the examination of legality in the United States is therefore the residence status and not the visa. Depending on the visa category, however, other factors may also play a role, in particular this applies to work visas.
Depending on the status under which your employee:s are in the United States, there are different courses of action:
1. ESTA holders (Visa Waiver Status)
In the case of visa-free entry with ESTA under the Visa Waiver Program (VWP)normally neither an extension of stay beyond the 90 days nor a change to another status (e.g. B-2 tourist visa) is possible. Only in emergencies, such as during times of the Corona Crisis, do US authorities allow an exception. The following requirements must first be met:
You are currently in the United States under the ESTA visa waiver.
You are unable to depart the US on time for an important reason that is not your fault (e.g., flight was canceled, no return flight available on time, etc.).
As a result, their VWP residency status is at risk of expiring in a timely manner.
In these special cases, the residence status can be extended by a maximum of 30 days within the USA within the framework of an application for "Satisfactory Departure" (except in cases of serious illness, where longer periods are conceivable). Those who are still unable to find a return flight to their home country after these 30 days have expired may apply for an additional extension of a maximum of 30 days via the "Satisfactory Departure" procedure.
To renew your ESTA status in this manner, you must call USCIS Customer Service at +1 800 375 5283 either shortly before or on the expiration date of your ESTA authorization to schedule an appointment at the nearest USCIS field office (usually for the same day). Please have important information such as your I-94 number (see entry stamp in your passport) ready.
Local USCIS Field Offices closed to the public until June 3, 2020, were partially reopened as of June 4, 2020.
In any case, you will need a copy of your passport, current I-94 and travel information to apply.
In urgent cases, U.S. travelers can also contact U.S. Customs and Border Protection (CBP) at +1 202 325 5120.
Attention: You must be able to provide evidence that the situation occurred through no fault of your own (e.g. cancellation of your flight, medical certificate, etc.). If you have already overstayed or will overstay, document the overstay that is not your own fault as best you can for subsequent U.S. entries, visa applications and stays.
2. foreign workers and business travelers in the US
Foreign employees and their family members who are working in the United States on a work visa (e.g. E- or L-visa) and whose residence status is about to expire have the possibility to apply for a status extension or a change of status directly on site in the USA.
However, business travelers, assemblers and project workers who hold a B-1 visa can also apply for an extension of status.
First, you should obtain the following information:
Check now whether an extension of status or a change of status in the USA is necessary or possible or promising.
Attention: An application must be filed in due time before the I-94 expires. Especially in the case of work visas, a status extension application must often be filed even earlier if the I-797 Approval Notice (= work permit) expires beforehand.
Despite the COVID-19-related restrictions, applications for extension / change of status are processed regularly via the USCIS. By the way, new filings of e.g. L-1 petitions are still possible.
There are three options depending on residency status or category:
Departure from the USA as soon as possible (if stay is to be terminated)
In the case of canceled flights, try to get another flight for the employee:s to their home country, preferably earlier.
Tip: The less time there is until the status expires, the earlier the return flight should be planned in order to still have "breathing room" to act in case of flight cancellations.
Extend stay for business travelers (B-1 status) via status extension or change of status (Form I-539).
An extension of status must always be filed well in advance of the expiration of legal status (see I-94), but no later than the day before. Form I-539 may be filed with the appropriate US agency, USCIS, online or by mail. In this context, the USCIS recommends filing a request for fee waiver via I-912 form (Request for Fee Waiver).
Attention: If your status is expiring very soon, you can call USCIS Customer Service (+1 800 375 5283) for further instructions. Be sure to have your I-94 number handy for this (see entry stamp in passport).
TIP: If you file an application for extension of status or change of status in a timely manner (i.e., before the expiration of the I-94), the person will have a so-called tolerated status for the processing period of the application, even if the official status has expired. Thus, the person may continue to reside legally in the U.S. until the final decision of the USCIS. In this case, you should always carry the Receipt Notice of the application with you as proof. However, if you leave the U.S. while the application for change of status is pending, the application is officially considered withdrawn.
Extend residence for foreign employees (expats or under local U.S. contract) via status extension or change of status (Form I-129)
Often, employees in the United States extend their residency status by entering and re-entering the country as long as their visa is still valid. Or, after the visa expires, a new U.S. visa is applied for through the consular process to allow for continued employment. These options are currently very limited by travel regulations. The remedy of choice in this case should be a status extension. First, depending on the work visa category, it must be checked whether a status extension is possible, by when this must be done at the latest and with what documentation.
Typically, this is done by filing Form I-129 with the appropriate USCIS service centers.
Tip: The Premium Processing procedure can be added to expedited processing for petitions that are still in progress.
If the employees' status (I-94) or work authorization (I-129S / I-797) expires in the meantime due to the long processing times, the employees can continue to be legally in the US until the application is finally processed and can still work in the US for up to a maximum of 240 days beyond the work authorization.
Extension of status applications for accompanying family members are usually filed (using I-539 form) along with the I-129 application. Also, be sure to check any existing General Employment Authorization (EAD) of accompanying spouses. These must also be renewed.
Attention: Status extension and change of status applications, especially on the basis of work visas, are complex and time-consuming procedures. Numerous factors must be considered individually. Plan enough lead time for the implementation, as extensive application documents are required. For this reason, we offer special consultations for this purpose and review your visa cases together with you so that we can find the appropriate solution. Let us advise you now!
3. international interns and trainees in the USA (J-1 visa holders)
Those who are currently in the United States for internship or training are encouraged to follow the current travel warnings of their respective home countries.
In addition, we strongly recommend that all J-1 status holders contact the visa sponsor immediately and directly to discuss further action, such as an earlier return home if necessary.
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