The current global pandemic has brought about uncertainty, and expats are not exempt. Those who need to renew visas, those who have lost jobs or business, and others who are trying to decide whether to stay in the US, or return home, all have questions.
Unfortunately, since this is an unprecedented event in modern history, the answers aren’t as forthcoming as we’d like.
I have spoken to an immigration lawyer in California (this is important to note, since some jurisdictions have different laws when it comes to unemployment benefits), and listened to the American Australian Association‘s Immigration webinar to collate the below guide to stimulus payments and visas for expats in the USA.
Wherever possible, please seek advice from professionals who have knowledge of your own individual circumstances. This post is meant as a general overview to point you in the right direction, and does not replace individualised legal advice tailored to your circumstances.
Expats and the US Stimulus Payment
The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) sets out the US government’s relief package plan. It is the largest economic relief bill in US history, in that it is allocating $2.2 trillion to individuals and business.
Some of this money is earmarked to go to individuals with a Social Security Number, who are not dependents. They are eligible for up to $1,200 (single or head of household), or $2,400 (if filing taxes jointly). These figures are means-tested though.
To receive the maximum amount, you must be earning less than $75,000 (adjusted gross income) on your own, or less than $150,000 jointly, according to your 2019 tax return. Those with qualifying children, will also receive $500 per child.
Will I receive the Stimulus Payment while in the US on a visa?
We spoke with Madia A. Nasrabadi, a Senior Attorney at Law with Yemi Getachew Immigration Law Office, to find out what the Act means for immigrants and those on visas.
One of the biggest questions that expats and those on working visas have been asking, is “am I eligible to receive a stimulus payment?”
“There are no clear guidelines that have come out from USCIS (United States Citizenship and Immigration Services) or DHS (Department of Homeland Security) regarding this,” Ms Nasrabadi said.
“However, based on the Stimulus bill, to qualify for the Stimulus package one-off payment, the immigration status is not necessarily considered, but rather, if the person is considered a tax resident and has a valid Social Security Number. The payment is given based on the most recent tax return filed.”
If you have filed tax returns in the US over the past few years, and you meet all eligibility criteria set out in the CARES Act, you should receive the stimulus package one-off payment.
“The Stimulus check has nothing to do with the immigration status, but rather if the person is considered a tax resident, has a valid Social Security Number, and has filed for tax return,” Ms Nasrabadi said.
Will taking the Stimulus Payment affect my Green Card?
Those who have been granted a US green card via marriage, may remember that their spouse had to sign an undertaking to support them financially, in the case that they could not support themselves.
This “public charge rule” is to ensure that you do not become a burden on the welfare system.
This made me wonder whether receiving the CARES Stimulus Payment would impact my Green Card.
Ms Nasrabadi assured me that this is would not be the case.
“As a general rule, individuals who are currently Legal Permanent Residents or green card holders, are not subject to public charge rule unless they leave the country for six months or more, and try to get readmitted to the US,” she said.
“Additionally, the Stimulus one-time payment is not considered a public charge under the new rule, and will not have any effect on individuals who are subject to the public charge rule, and will be filing for a green card. Therefore, regardless, the Stimulus check and even unemployment will not have any effect, as they are not considered public assistance under the rule.”
Issues relating to visas
The looming issue for those who are in the US on work, study, or any other kind of visa, is the expiry date.
This is especially worrisome since some countries have closed their boarders to outsiders, and embassies are not processing visa application interviews at the moment.
Note that you need to check your I-94 expiry date, found here, after every re-entry to the US, after each international trip. It is the date until which you are allowed to remain in the US.
My visa is close to expiry, what do I do?
Do not panic, this is obviously an unprecedented event, and there are some measures in place that you can take advantage of.
“Those who are in E3 or other non-immigrant status should apply for a change of status, if their status will expire soon, and they are passing the grace period,” Ms Nasrabadi said.
“They can file for a change of status to B2. USCIS has announced leniency for late filings as a result of the pandemic, but [it is] not clear yet how it is actually being implemented, since it is very new. Individuals should not let their grace period lapse, and should apply for a change of status if they can.”
The B2 visa gives you a tourist status for up to six months, and the grace period for E3 and H1-B visas is 60 days.
Other options for expiring visas
Zjantelle Cammisa Markel, Immigration Attorney and Principal of Cammisa Markel PLLC based in New York, elaborated on this during the American Australian Association immigration webinar held on April 6.
“If you are in the US, you can renew your E3 or other visa status (H1-B, O1, L1, TN, E1, E2) from within the US by filing an extension petition with USCIS,” Ms Cammisa Markel said.
“The benefit of filing the extension petition in the US is that, as long as you file before your status expires, you can continue working for your employer while that petition is pending. You are automatically authorized to continue working for that employer for up to 240 days before an approval. Typically an approval comes through in that time frame, and then you can continue working for the entire duration that you are approved for.”
If you use this route on an E3 visa, please note that the next time you travel internationally, you will need to make an appointment at a US Consulate for an interview to have the visa placed in your passport.
You will not be able to re-enter the US without having completed this part of the process.
What if I left the US to renew my visa and I am stuck in another country?
Start checking the US Consulate websites to re-book your visa interview now. Some Consulates have already re-opened their calendars for late June and early July.
“Up until a week ago, visa applicants had the option to renew their E3, or obtain a new E3 for a new employer, by using a mail in service if they had been 10 printed before,” Ms Cammisa Markel said.
Being “10-printed” refers to having previously applied for a visa at the consulate to which you are mailing in your application, and having had all 10 of your fingerprints taken at that time.
“It turns out that they have suspended that service, so it’s no longer an option. However, keep in touch with your Immigration Attorney to see if that option re-opens.”
Can I change to a new employer without leaving the US?
The answer to this question really depends on what kind of visa you are on when you change employers.
Ms Cammisa Markel advises that those on E3 and H1-B visas are able to file a Change of Employer Petition without leaving the US, however the conditions are different, depending on your visa.
“If you in anything other than H1-B status (E3, O1, TN), you can file a change of employer petition within the US, but unfortunately, you are not allowed to start working for the new employer until the petition is approved,” she said.
“If you are in H1-B status, you will be able to start working with a new employer as soon as your change of employer petition is filed with USCIS (you do not need to wait for the approval).”
If you are in E3 status, the next time you travel internationally, you will need to make an appointment at a US Consulate for an interview to have the visa pertaining to your new employer placed in your passport.
You will not be able to re-enter the US without having completed this part of the process.
Can my employer place me on furlough or request I take unpaid leave?
Those on an E3 or H1-B visa are not able to be placed on furlough, as the Labor Condition Agreement stipulates the amount of money that employers are obliged to pay the employee.
Ms Cammisa Markel said employers cannot request their employees to take unpaid leave, but there are certain circumstances when unpaid leave is allowed, only at the employee’s request. These circumstances include:
- maternity leave
- an accident
- to extend a holiday after paid leave, pursuant to company policy
If your employment ends and you return to Australia, you may still be able to return to the US if your company rehires you.
“…if your visa is still valid and your employer says “hey, we are ready for you to come back”, you can come back on that same E3 visa, as long as it’s still valid,” she said.
“Typically we will say to clients, if it’s been a long and extended period of time since they’ve been out of the US, we would like them to have a letter from their employer stipulating that they would like the employee to resume employment in the US pursuant to the terms of the visa and LCA that is still valid.”
If I leave the US, can I continue working for the same company, remotely?
The conditions of your visa are only applicable while you are residing in the United States, Ms Cammisa Markel said.
“You can work for your employer outside the US and continue to get paid into your US bank account. You only need to abide by the rules of your visa if you’re going to be working for your employer physically in the US,” she said.
“Be mindful, however, that you are abiding by the employment rules of the country you are now working in.”
Can I be out of the US for more than 180 days while on a Green Card?
Being outside of the US for more than 180 days does not automatically mean you will forfeit your Green Card, however it is a break of the “continuous presence” rule and may impact an application for citizenship.
“That being said, you can still return [to the US] after 180 days, and before a year has gone by,” Ms Cammisa Markel said.
“You’re only considered to have potentially abandoned your Green Card if you’ve been away for more than a year at a time.”
Can I apply for Unemployment Benefits while on a visa?
We return to Madia Nasrabadi, Senior Attorney at Law with Yemi Getachew Immigration Law Office, who says this varies depending on the state you are applying in.
“They should check their local unemployment guidelines to see if they qualify for unemployment without violating their visa,” Ms Nasrabadi said.
“The unemployment guidelines differ in each jurisdiction and can impact different non-immigrant status, depending on their rules and the particular non-immigrant status.
Further Reading & References
Ms Cammisa Markel has written two articles with more information:
- For E-3 Visa holders navigating the impact of COVID-19
- For E-3 Employers navigating the impact of COVID-19
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