Impact on Immigration: Covid-19 and Executive Orders

Much has been written in recent months regarding the impact that Coronavirus and related policy instructions and reduced workforce initiatives or stay-at-home orders. Because immigration is a complicated area of law and many media reports are inaccurately explaining the impact of these recent changes, I wanted to take a minute and provide a primer/review on some common immigration terms so that we are understanding these changes within the proper context.

VISA vs. STATUS

There is a big difference between a visa and one’s status inside of the United States. In a passport, an individual possess a visa. These usually take up a page in the passport and have a 1, 2, 5, up to 10 year valid period. All a Visa does is allow the holder of the visa to travel to the border of the United States, knock on the door and ask to come in. A visa does not guarantee that holder will be admitted. However, assuming that a person is inspected by a government officer and admitted into the US, then the passport is either actually or digitally stamped and the person receives an actual or digital I-94 to tell the individual and potential employers what status they are holding and when such a status will expire. This is a critical difference because it is completely OK to be inside the US, assuming your status is valid, but your visa has expired. Basically, this means that the next time you travel outside the US, you will need to schedule a time at the US Embassy or Consulate to renew your Visa before you can return. However, the only rule requiring you to leave the US, in the example I’ve outlined, is where your status is set to expire or you have violated the terms of your status and therefore it has been cancelled.

CHANGING, EXTENDING OR ADJUSTING STATUS

Through the mail, and without leaving the US at all, for most cases, it is possible to extend or even change your status to a new category (assuming you follow the correct timing of when to file for these requests). For example, if a person is in H-1B status in the US, assuming they are eligible to ask for more time, then they can file a form with USCIS to extend their current status and never leave the US. This process is often more expensive and can take longer than simply leaving the US and returning to obtain a new “stamp” at entry, but with current travel restrictions and executive orders, the “exit and re-enter” strategy is not as reliable as it once was.

Now the last category is to adjust status refers to changing from a non-immigrant to an immigrant category as part of a green card application. It is to seek a permanent adjustment within the US. Sometimes an adjustment of status can be done inside the US and sometimes it must take place at an Embassy abroad. Every case is unique.

COVID-19 IMPACT

During the recent weeks and months, various federal agencies have either been completely closed or else operating on severe staff shortages. Due to this fact, some applications will be subject to unexpected delays in overall processing time. Most centers have reopened for interviews and have begun processing applications. I expect to see any disruption to be rectified within the next several months, but it is quite possible that any further shut down orders could have a larger impact on further processing timelines.

EXECUTIVE ORDERS

There have been recent executive orders restricting the entry of certain visa holders. On June 22, 2020, there was an extended and expanded Executive Order that will affect those outside the US seeking to enter or re-enter the United States. The full language of the Order can be found here.

In short summary, those who are outside the US and do not have a current valid visa issued earlier than June 22, 2020 and are seeking to enter the US in the categories of H-1B, H-2B, J-1 and L, are temporarily unable to re-enter the US through December 31, 2020.

WHAT THIS MEANS

For some, this will have no effect. For those who are in the US on H-1B or J-1, whether in the Residency, Fellowship or post-grad jobs, there will be no impact from this order.

J-1 Waiver applications are still being processed, but it is important to get application submitted as early as possible to avoid any need to leave and re-enter the US next year (in case the order is extended again).

Canadians may not be impacted by this because there is a special rule that treats Canadians as “visa exempt”. It will be interesting to see how this is applied in those cases.

Bottom line, reach out when questions come up.