Visa Lawyer Blog

Articles Posted in Nonimmigrant Visas

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In this post we would like to address some of our clients frequently asked questions regarding the Payment Protection Program, a loan forgiveness program created by the CARES Act (Coronavirus Aid, Relief, and Economic Security Act).

In response to the Coronavirus pandemic, the United States government recently passed a bill providing emergency financial relief to individuals, families, and small businesses. As you know, the majority of states nationwide have issued stay-at-home orders requiring the public to avoid all nonessential outings and stay at home as much as possible. Non-essential businesses have also been ordered to close their facilities to the public until further notice. Essential businesses have been allowed to continue to operate such as grocery stores, pharmacies, health care facilities, banking, law enforcement, and other emergency services.

One of the main provisions of the bill, known as the CARES Act (Coronavirus Aid, Relief, and Economic Security Act), allocates billions of dollars in loans to small businesses who are feeling the economic impact of the stay-at-home orders. The CARES Act specifically authorized the Small Business Administration (SBA) to create the Payment Protection Program for the purpose of providing financial assistance to small businesses nationwide that have been adversely impacted by the COVID-19 crisis. SBA lenders began accepting loan applications from small business owners on April 3, 2020. Applications will continue to be accepted until June 30, 2020. It is important for business owners to apply for these loans as soon as possible.

  1. What is the Payment Protection Program?

In a nutshell, the Payment Protection Program is a loan forgiveness program that allows small businesses (of 500 or fewer employees) to apply for loans of (1) $10 million or (2) 2.5x the average total monthly payments of the company’s payroll costs, whichever is less.

Loans under this Paycheck Protection Program (PPP) will be 100 percent guaranteed by SBA, and the full principal amount of the loans will qualify for loan forgiveness provided that:

(1) the business was in operation on February 15, 2020 and either had (a) employees for whom you paid salaries and payroll taxes or (b) paid independent contractors as reported on Form 1099;

(2) all employees are kept on the payroll for 8 weeks and;

(3) the money is used for payroll costs, rent, mortgage interest, or utilities (at least 75% of the forgiven amount must have been used for payroll).

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Welcome back to Visalawyerblog! As you all know, USCIS recently announced that it has completed the selection process to meet the 65,000/20,000 annual numerical limitations for H-1B fiscal year 2021.

All accountholders should have been notified of selection via their USCIS online accounts by March 31,2020. We can confirm that our office received all notices of selection before March 31, 2020.

If you were selected, the following status will appear on the petitioner’s USCIS online account:

Selected: Selected to file an FY 2021 H-1B cap-subject petition.

What’s Next?

Now that the selection process has been completed, petitioners who properly registered the beneficiary through the mandatory H-1B electronic registration process and were selected in the lottery are eligible to file a FY 2021 H-1B cap-subject petition with USCIS.

Petitioners who were not selected cannot file a petition with USCIS.

Please note that selection does not mean that an H-1B petition has been approved. The petitioner must still establish eligibility for petition approval at the time of filing and the application must go through adjudication based on existing statutory and regulatory requirements.

When can I file?

H-1B cap-subject petitions for FY 2021, including those petitions eligible for the advanced degree exemption, may now be filed with USCIS if based on a valid selected registration (as of April 1st). 

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In this post we bring you the latest immigration related COVID-19 updates. During this difficult time, we would like to extend our heartfelt regards to you and your families. We hope you are staying safe and taking the necessary precautions to prevent the spread of COVID-19. The sooner we abide by government measures, the sooner we can overcome this pandemic as a Nation. Additionally, please remember that although our office is closed to the public, we continue to function behind the scenes to file your petitions on a timely basis. If you have any questions regarding your immigration options, or your currently pending case, we would be glad to assist you by telephone, Zoom, or Skype.

President Extends Federal Social Distancing Guidelines to April 30

This past Sunday, March 29, 2020, the President of the United States extended the Nation’s social distancing guidelines for another 30 days, following warnings from health advisers of the serious consequences that could result if Americans were allowed to return to normal life. Pursuant to this order, social time will continue to be limited only to necessary outings such as grocery shopping, medical appointments, etc. until April 30.

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It has been nearly two weeks since the President of the United States declared a public health emergency for COVID-19, forcing the American economy to come to a screeching halt. Thereafter, states enacted their own measures requiring non-essential businesses across the country to shutter temporarily until the virus has been contained. Although these measures have been undoubtedly necessary to prevent the rapid spread of the virus, the majority of Americans nationwide have lost their livelihoods overnight.

This past week lawmakers have been busy drawing up legislation that would provide emergency financial assistance for individuals, families, and businesses in the United States.

This afternoon Congress approved the Coronavirus Aid, Relief and Economic Security Act (CARES), and the bill now heads to the President’s desk for signature.

Although this legislation is sweeping in scope, this post will specifically discuss financial relief for individuals and families, and more importantly which individuals will qualify to receive financial assistance.

What does the CARES Act do for individuals and their families?

Under the Act, most single individuals earning less than $75,000 can expect to receive a one-time payment of $1,200. Married couples filing jointly (earning less than $150,000), would each receive a check ($2,400) and families would receive $500 per child. For example, a family of four earning less than $150,000 can expect to receive $3,400.

Rebates would begin to phase out at $75,000 for singles, $112,500 for heads of household, and $150,000 for joint taxpayers at 5 percent per dollar of qualified income, or $50 per $1,000 earned. Rebates phase out completely at $99,000 for single taxpayers with no children and $198,000 for joint taxpayers with no children.

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As the impact of COVID-19 grows, we think it is important that you hear directly from us about the mitigation efforts that we the Sapochnick Law Firm have enacted to reduce the risk of infection to our clients, attorneys, and valued staff members.

At this critical juncture, our focus remains providing the highest quality of service to our clients, while at the same time preserving the health, safety, and wellbeing of all those we come in contact with.

To that end, our Firm is hard at work to avoid critical disruptions in service from the COVID-19 outbreak, while at the same time acting responsibly to do what we can to prevent further spread of this virus. We continue to closely monitor and assess this evolving situation and are diligent about communicating with affected clients regarding delays or other issues resulting from this evolving situation. In recognizing the fluidity of this situation, we have engaged our executive staff to meet regularly to monitor activities and amend our policies accordingly.

Our approach to COVID-19

In meeting the needs of our clients while complying with government directives, our Firm has established an Alternate Work Schedule Program that incorporates business continuity for all critical and essential services, especially those in which time is of the essence. In part, our Firm will engage the use of sophisticated and effective remote working software that will allow non-essential employees to work from the comfort of their homes to promote social distancing and reduce transmission. Essential employees in good health will continue to work in office, however every effort will be made to limit client meetings to only those that are essential and cannot be carried out through online platforms.

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In the midst of the ongoing Coronavirus (COVID 19) pandemic, USCIS reminds applicants and petitioners impacted by the pandemic that they can seek certain types of discretionary relief on a case-by-case basis.

Relief for Individuals Seeking Extensions/Change of Status

Special relief is available to individuals who were unable to file an extension or change of status petition before the end of their authorized stay expired, if a special situation prevented the individual’s departure and/or filing.

According to USCIS, “when applying for an extension or change of status due to a special situation that prevented your planned and timely departure,” the agency “may take into consideration how the special situation prevented your departure.”

In addition, if an applicant was not able to apply for an extension or change of status before their authorized period of admission expired, USCIS in their discretion may excuse the delay if it was due to extraordinary circumstances beyond the applicant’s control. An applicant in such a situation should be prepared to provide documentary evidence of those extraordinary circumstances. Depending on the applicant’s situation, the types of evidence that can be provided will vary.

Relief for F-1 Students Based on Severe Economic Hardship Caused by Unforeseen Circumstances

F-1 students who are experiencing severe economic hardship because of unforeseen circumstances beyond their control (such as those impacted by the COVID 19 pandemic) may request employment authorization to work off-campus (if they meet certain regulatory requirements) by filing Form I-765 Application for Employment Authorization along with Form I-20, and supporting materials. See 8 CFR 214.2(f)(9).

The student’s Form I-20 must include the employment page completed by your Designated School Official, certifying your eligibility for off-campus employment due to severe economic hardship caused by unforeseen circumstances beyond your control.

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In this post, we will discuss Form DS-5540, a mandatory public charge questionnaire that must be completed by all foreign nationals seeking an immigrant visa at a U.S. Consulate or Embassy abroad and some non-immigrant visa applicants.

What is Form DS-5540, Public Charge Questionnaire?

Shortly after the publication of the public charge rule in the Federal Register, the government published a separate rule requiring applicants seeking immigrant visas, including diversity visas, at a Consulate abroad, to complete Form DS-5540, except for certain types of immigrants exempt from the public charge ground of inadmissibility such as self-petitioners under the Violence Against Women Act (VAWA) and Afghan and Iraqi interpreters applying for special immigrant visas.

In addition, the government has given consular officers broad discretion to require nonimmigrant visa applicants to complete DS-5540, if for example the officer determines more information is needed regarding the applicant’s ability to financially support themselves following entry into the United States, without depending on the government’s assistance, or if the consular officer is not satisfied with the information provided by the applicant.

Therefore, consular officers have the power to request nonimmigrant visa applicants to complete DS-5540.

The DS-5540 solicits information that helps consular officers determine whether applicants are subject to the public charge visa ineligibility ground (section 212(a)(4) of the Immigration and Nationality Act) and will not rely on certain specific public resources upon entering the United States.

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In light of the global Coronavirus pandemic, on March 11, 2020, the President signed a presidential proclamation suspending and limiting the entry of immigrants and nonimmigrants who were physically present within the Schengen Area (most EU states) during the 14-day period preceding their entry or attempted entry into the United States, effective 11:59 eastern time Friday, March 13, 2020.

The proclamation will remain in effect until terminated by the President at his discretion based on recommendations by the Secretary of Health and Human Services.

The proclamation does not apply to persons aboard a flight scheduled to arrive in the United States that departed prior to 11:59 eastern time on March 13, 2020.

Who is exempted from the Proclamation?

The proclamation will not apply to the following categories of people:

  • lawful permanent resident of the United States;
  • any alien who is the spouse of a U.S. citizen or lawful permanent resident;
  • any alien who is the parent or legal guardian of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21;
  • any alien who is the sibling of a U.S. citizen or lawful permanent resident, provided that both are unmarried and under the age of 21;
  • any alien who is the child, foster child, or ward of a U.S. citizen or lawful permanent resident, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;
  • any alien traveling at the invitation of the United States Government for a purpose related to containment or mitigation of the virus;
  • any alien traveling as a nonimmigrant pursuant to a C-1, D, or C-1/D nonimmigrant visa as a crewmember or any alien otherwise traveling to the United States as air or sea crew;

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Great news for FY 2021 H-1B registrants! USCIS has published step-by-step video instructions showing you how you can submit an electronic registration on the USCIS website without the use of an attorney or representative. It is not too late to register. The registration period closes noon ET on March 20, 2020.

USCIS Adds FAQs to Website

USCIS has also included a helpful and detailed FAQ section about the H-1B electronic registration process on its website addressing various topics regarding the H-1B registration process and filing process itself.

We have included these FAQs in this post for your convenience. Questions marked in red are those that we consider to be of most interest to petitioners.

For further information about the H-1B electronic registration process please click here.

Q: What happens if the prospective beneficiary does not have a last name? What do you enter into the system?

  • A: If there is only one name for a beneficiary, it should be entered as the last name. The first and middle name fields will have check boxes that indicate “Beneficiary does not have a first name” or “Beneficiary does not have a middle name.” These boxes should be checked in these instances. Do not enter placeholders, such as “FNU”, “LNU”, “Unknown”, or “No Name Given.

Q: Is there an appeal process for registrations determined to be invalid duplicates?

  • A: Registrations that are determined to be duplicates will be invalid. A registrant who submits duplicate registrations will not be able to appeal the invalidation.

Q: If you are registering for the master’s cap based on the expectation that the beneficiary will earn a qualifying advanced degree, and you are actually selected under the master’s cap, but, the beneficiary does not obtain their qualifying advanced degree, is there a risk that the cap-subject H-1B petition for that beneficiary will be denied?

  • A: If a registration is submitted requesting consideration under the INA 214(g)(5)(C) advanced degree exemption because the beneficiary has earned, or will earn prior to the filing of the petition, a master’s or higher degree from a U.S. institution of higher education, and the registration is selected under the advanced degree exemption, the beneficiary must be eligible for the advanced degree exemption at the time of filing the I-129 petition. If the beneficiary is selected under the advance degree cap and has not earned a qualifying master’s or higher degree from a U.S. institution of higher education at the time the petition is filed, the petition will be denied or rejected.

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Are you ready for the upcoming H1B season for fiscal year 2021?

With the registration period fast approaching, we want to make sure you know everything there is to know about the new mandatory H-1B electronic registration process for fiscal year 2021 (FY 2021).

The following FAQ provides the most up to date information regarding the mandatory electronic registration requirement.

 

H-1B Registration Process Timeline

Feb. 24: Prospective petitioners may begin creating H-1B registrant accounts (account creation will remain open throughout the entire registration period). Representatives may create an account at any time.

March 1: H-1B registration period opens at noon ET.

March 20: H-1B registration period closes at noon ET.

March 31: Date by which USCIS intends to notify selected registrants.

April 1: The earliest date that FY 2021 H-1B cap-subject petitions may be filed.

FAQs

Q: What is the electronic registration requirement?

A: In order to participate in the upcoming H-1B lottery, prospective petitioners seeking to file H-1B cap-subject petitions for FY 2021, including for beneficiaries eligible for the advanced degree exemption, must first electronically register and pay the associated $10 H-1B registration fee for each beneficiary.

Only those petitioners who have submitted an electronic registration and have received a “Selected” registration notification may properly file an H-1B cap-subject petition for FY 2021.

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