Fragomen guides US visa holders through fog of pandemic

Many U.S. visa holders whose jobs have been impacted by coronavirus-related shutdowns were unable to return to their home countries, so Fragomen attorneys have stepped in to help the firm's employer clients work through compliance issues.

"They're here on a particular visa, and their stay is often tied to their employment," Fragomen partner Karine Wenger said. "If the circumstances surrounding their employment change, then there's a lot of questions."

When the work-from-home order was issued in California, Wenger said it opened up new issues for certain visa holders. Some visas specifically designate a place of work, and if the visa holder is suddenly forced to work from home that creates compliance issues.

"There's this idea that visas are granted for a specific purpose, a particular job with a specific company, in a particular location at a particular salary, so any deviations from what you listed on a petition can be problematic," said partner James Y. Pack.

Then there are those whose work visas expire while still in the United States. Partner Chad C. Blocker described how he worked with a hospitality client, one of the largest seasonal employers in the nation, to return those seasonal workers home as countries across the world started closing borders. Not all of them were able to leave, so he had to find another solution.

"The only option is to try to change their status to a visitor status, but obviously, that doesn't leave them with any opportunity to earn money in the United States because when you're in visitor status, you're not work authorized," Blocker said. "That's been a real challenge."

Karine Wenger

Regardless of the type of visa, Pack said the process is largely the same. It requires attorneys look at a company's needs, what its risk tolerance is and what applicable guidelines they think apply.

"We have to go through each visa type, go through each proposed employee action that companies are trying to take and walk them through the same thing," Pack said. "'Here are the general rules, here is some other guidance that we've seen in different situations, and here's what we think the risk is.'"

The Fragomen attorneys also said it was becoming increasingly difficult to get visa extensions, updates or other solutions for their clients' employees. For example, Blocker pointed to the United States Citizenship and Immigration Services "premium processing" program that allows employers to pay a $1,440 fee to have a visa case answered within 15 calendar days. That program was temporarily suspended on March 20 due to the coronavirus, according to the USCIS website. Blocker said the removal of that program makes it much harder for employers to update their workers' visas.

"Just not knowing what the outcome of the petition is going to be is very challenging," Blocker said. "I think a big part of this is just a lack of clarity on petition outcome. ... That's hard for employers."

USCIS has been talking about moving to a digital filing system for about 15 years, according to Blocker, but the Service still runs on paper filings. That has posed multiple issues for Fragomen attorneys and their clients.

"Logistically, one of our big challenges has just been, 'How do we get these paper petitions and applications filed with the government?'" Blocker said.

Fragomen petitioned USCIS to make some concessions to make it easier to file. For example, the agency still requires "wet" signatures, which means the signee must physically sign the paper. On March 20, USCIS agreed to accept scanned versions of wet signatures.

"It's been very helpful as far as just moving things on, and getting these matters filed with the government," Blocker said.

Still, the government hasn't provided much guidance on what they will and won't accept, the attorneys said. USCIS has an existing provision that allows late filings to be excused if there's a compelling reason for it, but Pack argued it may not be sufficient enough to address the current need. Park said it's been hard to "basically [get] the government to say, 'We'll grant exceptions in this situation, we won't enforce these particular rules because of the situation that we all find ourselves in.'"

Much of the confusion and complication comes from an administration that has stayed silent on providing guidance to operate in this unprecedented environment, according to Pack.

"Immigration in the United States was really difficult before January of this year because of the administration," Pack said. "Six years ago had this happened, we'd be more comfortable or confident saying that maybe the agencies will give us more relief, or they'll excuse more of these actions that are happening. Today, who knows?"

Clients have to make decisions carefully because they know they'll be under more scrutiny with the Trump administration, according to partner Chad C. Blocker. And trying to advise clients through these issues is complicated because there's no clear cut answer.

"There's not a lot of black and white here," Blocker said. "We're left with a lot of gray, and that means really just making good judgments on what the best way forward is and just helping talk them through what the best course of action would be."