H-1B Workers Lose Jobs and Status Because of Covid-19
By Reuben Seguritan
The H-1B visa is a non-immigrant visa which allows foreigners to live and work in the United States temporarily. Each year the US government allows up to 65,000 H-1B visas to be issued. When the number of applications exceeds the yearly 65,000 cap, the selection will be done by lottery. An H-1B visa is usually granted for an initial period of 3 years and an extension for 3 years may be granted thereafter. After this extension period, the foreign worker must convince his employer to petition him for lawful permanent resident status or what is commonly known as a green card. This is because there is a six-year visa limit to the H-1B. Foreign workers with an H-1B visa are permitted dual intent, meaning the applicant can maintain H-1B visa status while applying for lawful permanent resident status to remain in the US permanently.
The rules and requirements for the H-1B visa have become stricter under the Trump administration because of the view that H-1B visas are susceptible to fraud and deprive Americans of jobs. The H-1B visa holder must work for the employer that filed the H-1B application and at the work site and with the work hours stated therein. If there is a major change, for example the foreign worker will work for another employer, a new H-1B application must be submitted.
The H-1B foreign worker must always be lawfully employed according to the approved application. If he loses his job, a new employer must file a fresh H-1B application for him within 60 days of losing his job. If not, the foreign worker would be considered unlawfully present in the United States. The law states that aliens who have been unlawfully present for more than 180 days but less than 1 year are subject to the 3-year bar to reentry in the US, while those unlawfully present for 1 year or more are subject to the 10-year bar. The foreign worker must leave the US voluntarily before he is considered unlawfully present to ensure that he can be granted another H-1B and eventually a green card. If not, he would be deported and not allowed to return to the United States for either 3 years or 10 years, and will not be granted an H-1B visa.
Foreign workers who are currently in the US under the H-1B visa program are in various occupations such as IT specialists, healthcare workers, and market research analysts. Unfortunately, the current covid-19 pandemic has forced many businesses to close and consequently lay off their H-1B employees. These H-1B workers must find a new job and for that employer to file the new H-1B application for them. But this has become very difficult for them because a lot of businesses and companies are not allowed to operate by the government to lessen the spread of the covid-19. Even the businesses that are allowed to operate, they are operating with a reduced staff and are not currently hiring. Hence, they cannot find a new job and might become unlawfully present in the US.
Even for those who have found new jobs, the new H-1B applications are not moving forward because the US Citizenship and Immigration Services (USCIS) has closed some of its offices throughout the country and have suspended services that require applicants to appear personally for appointments.
For H-1B visa holders who have pending green card applications, losing their jobs during this pandemic has caused them even more problems. This is because the green card applications cannot proceed if they lose their H-1B status. An option for H-1B workers is to voluntarily leave the US before they become unlawfully present and then apply again. However for some of them, voluntary departure is not a viable option because their home countries have closed their borders and do not allow any flights into their countries. This has left hundreds of people stranded in the US and at risk of losing their H-1B status and authorized stay in the US.
Various organizations such as the American Immigration Lawyers Association (AILA) have requested the government, as early as March, to provide relief measures for foreign workers and immigrants to ensure that they would not lose their status during the covid-19 pandemic. Some of the suggested measures were the suspension of deadlines to submit necessary applications and requirements, automatic extension of work visas for the duration of the covid-19 pandemic, and allowing healthcare workers with H-1B visas to remain to the US lawfully because they are vital to the fight against covid-19. Sadly, the USCIS has not made any announcements that would protect H-1B workers during the covid-19 pandemic.