Ask Sophie™: How do I extend my visa status without leaving the U.S.?

Here’s another edition of “Ask Sophie™,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

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Dear Sophie:

I’m an E-3 visa holder and I usually go back to Australia to extend my visa.

Given the COVID-19 travel restrictions, how do I extend my immigration status from inside the U.S.?

— Aussie Programmer

Dear Aussie:

Thanks for your question. The extension process from inside the U.S. is similar for you and anyone on a working visa, such as H-1B, H-1B1 (from Chile or Singapore) or TN (from Canada or Mexico). You might be used to traveling back home, or to Canada, to renew your visa. However, there’s another way to do it.

Even though U.S. Citizenship and Immigration Service (USCIS) has suspended in-person services due to COVID-19, the agency continues to process applications and petitions and perform other duties that don’t require public contact. There have been a number of immigration changes since the advent of COVID-19.

The E-3 as well as the H-1B, H-1B1 and TN all require employer sponsors, so your employer needs to file on your behalf to extend your visa. Extensions can be filed no more than six months before the visa is set to expire. The whole process can be done within the United States. Keep in mind that any paperwork to file the extension request must be received by USCIS on or before your expiration date.

The need to file an extension could end if a lawsuit filed earlier this month by the American Immigration Lawyers Association (AILA) succeeds. AILA sued USCIS in federal district court seeking to immediately end all immigration deadlines and maintain the legal status for visa holders in the U.S. during the COVID-19 pandemic. For now, though, you will still have to file for an extension.

You and your employer should also know that USCIS made visa renewals more difficult and unpredictable a few years ago. Previously, USCIS officers automatically granted visa renewals as long as the visa holder’s situation had not changed and no error or fraud in the initial visa application occurred. Under “extreme vetting,” visa renewals are reviewed with the same level of intense scrutiny as initial petitions.

E-3 visas can be extended every two years. Your employer must get a new Labor Condition Agreement (LCA) approved by the U.S. Department of Labor  before applying for an extension of your E-3. The Labor Department typically takes seven business days to make a decision on an LCA. Presuming that your company is considered a non-essential business and you’re all working from home, your employer can electronically post the LCA.

To extend your E-3 visa, your employer must submit the petition along with supporting documents, and the relevant filing fees. Your family members might need to be included as well. The same holds for employers of H-1B, H-1B1 and TN visa holders.

With some status extensions, USCIS requires individuals to provide their biometrics — fingerprints, photograph and/or signature — at a biometric services appointment. However, USCIS has canceled all such appointments until further notice during the COVID-19 emergency. The agency recently announced it will reuse previously submitted biometrics for work permit renewals.

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The USCIS processing time for an E-3 visa renewal is currently less than five months, but this data hasn’t really taken into consideration the effects of COVID-19. Indeed, COVID-19 will likely add processing delays. You can continue to work for your employer up to 240 days after your E-3 has expired while an extension remains pending. Premium processing is not available for E-3 initial petitions or extensions. For other visa types that would normally qualify, USCIS has suspended premium processing until further notice due to COVID-19.

The process and timing issues for extending the other visas I mentioned are as follows:

• H-1B visa: Must be extended every three years up to six years total — unless your employer is sponsoring you for a green card. If your employer is sponsoring you for a green card, your H-1B can be renewed in one-year increments beyond the sixth year until you get a green card. Like the E-3 renewal, the H-1B renewal requires your employer to file a new LCA. The USCIS processing time for an H-1B extension is currently two to four months in California. Premium processing is available for initial and renewal petitions. However, premium processing has been temporarily suspended.
• H-1B1 visa: The initial H-1B1 visa is valid for 18 months. After that, it must be extended, but extensions can be filed indefinitely. The LCA associated with your visa is valid for two years, so your employer must file a new LCA for your renewal petition every other year. The USCIS processing time for an H-1B1 extension is two to four months. Premium processing is not available for H-1B1 visa applications or renewals.
• TN visas: TN visas for both Canadians and Mexicans are valid for three years, but can be extended indefinitely. Although temporarily suspended, premium processing is usually available for initial TN petitions and renewals. USCIS is currently taking anywhere from three weeks to four months to process TN extensions.

Due to the COVID-19 pandemic, USCIS recently announced that petitioners will get an extra 60 calendar days to respond to a Request for Evidence, Notice of Intent to Deny, Notice of Intent to Revoke or Notice of Intent to Terminate dated between March 1 and May 1, 2020. That may be extended depending on how long emergency measures for fighting the coronavirus remain in place.

A couple of other things to keep in mind when renewing a visa during the COVID-19 emergency:

• USCIS will accept reproduced signatures on all forms, including the I-129.
• Immigration officials consider COVID-19 a “special situation,” much like hurricanes and other natural disasters. That means if a COVID-19-related issue makes it difficult or impossible to meet a renewal deadline, request an extension and the reason for needing that extension.

Please consult with an immigration attorney to discuss this or any other immigration matter in more detail.

Be well!

Sophie

Have a question? Ask it here; we reserve the right to edit your submission for clarity and or space. The information provided in “Ask Sophie™” is general information and not legal advice. For more information on the limitations of “Ask Sophie™,” please view our full disclaimer here. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms; if you’d like to be a guest, she’s accepting applications!