At McEntee Law Group, we are all too familiar with the personal impact COVID-19 has on immigrants here in the United States. As a law firm founded by a former international student, Fiona McEntee, we are aware of the challenges international students face when applying to study in the U.S. under “normal” circumstances. We are also painfully aware of the added layer of uncertainty and unease that COVID-19 adds to these international students and J-1 visa holders.
We have drafted a short post highlighting some of the most common questions we are receiving from F-1 or J-1 visa holders, or would-be international students during this time. We hope it helps!
If you or someone you know requires immigration assistance during this time, you are welcome to reach out to us through our contact form here.
Does President Trump’s recent Immigration Ban affect me?
On April 22nd, President Donald Trump announced that he had signed an “Immigration Ban”. This is not a complete ban on immigration rather the Executive Order temporarily suspends the issuance of some new green cards to those currently outside the United States.
This particular Executive Order does not apply to F or J visa holders who are entering the United States for the purposes of study. It also does not affect F-1 student who are authorized for Optional Practical Training (OPT). For complete details on who exactly this “ban” affects, please see our most recent blog post here.
Can I still enter the United States on my F-1 or J-1 Visa?
In short, it depends. Whilst the President’s most recent Immigration Ban/Executive Order does not apply to F-1 or J-1 visa holders, non-immigrant travel to the U.S. is virtually at a standstill due to the COVID-19 pandemic.
Currently, the United States has issued COVID-19 related Travel Bans on temporary visa holders from China, Iran, and almost all of Europe. Additionally, U.S. Embassies and Consulates abroad are closed due to the ongoing pandemic. The U.S. Department of State has temporarily suspended normal interviews and visa services, and has not announced when they will resume. Note that exceptions may be made for medical professionals including J-1 physicians.
For now, even if you already have your F-1 or J-1 visa stamp, your entry may be on hold due to ongoing travel restrictions. Even under “normal” circumstances, you are always subject to inspection upon entry to the U.S., and your entry is always subject to the discretion of the U.S. government, so it is never guaranteed.
I am outside the U.S. and am scheduled to begin study at a U.S. University/College this fall – will I receive my visa in time?
As of March 20th, in response to COVID-19, the U.S. Department of State has temporarily suspended routine visa services at all U.S. Embassies and Consulates abroad. It is unclear when U.S. Embassies and Consulates will reopen and resume normal visa processing.
If you are scheduled to begin study at a U.S. college or university this fall, we would recommend contacting your prospective college or university’s international student office for guidance.
Can I apply for an F-1 visa while I am in the U.S. on a different visa?
If you are currently in the U.S. in another valid status (e.g. B-2 visitor), you may be able to apply to change your status to F-1 here in the U.S. Note that it’s technically not considered a “visa” because you don’t get a visa stamp in your passport but you can potentially change your status to F-1 while in the U.S.
In order to do this, you must be able to show:
You were lawfully admitted to the United States in a non-immigrant status;
Your non-immigrant status remains valid;
You have not violated the conditions of your status (e.g. by working without authorization);
You have not committed any crimes or engaged in any other actions that would make you ineligible for a change of status; and,
You meet all other requirements for change to F-1.
If you are considering a change of status here in the U.S., we recommend that you reach out to an experienced immigration attorney for assistance. There are some things about changing to F-1 status that can be quite complicated and any missteps could cause major issues. As such, we would urge you to use an immigration attorney for this type of case.
All of my classes are now online – does this affect my immigration status?
The U.S. Student & Exchange Visitor Program (SEVP) and the Department of State (DOS) announced on March 9 that they are focused on ensuring that foreign students are able to continue in a full course of study as required by federal regulations during this time. They’ve stated that they intend to be flexible with temporary accommodations, including moving courses online. Under this flexibility, F-1 and J-1 students may maintain their status by enrolling in a full time (12 credit hours for undergraduates/10 graduate students) course of study through online learning.
Here’s a link to a wonderful NAFSA Advisory on Online and Distance Education Strategies in the Context of COVID-19.
Please keep in mind that this provision is only effective for the duration of the emergency, and that this guidance applies to F-1 students and J-1 exchange visitors currently in the U.S. This guidance is not intended for new or initial-status students or exchange visitors who have not yet entered the U.S. As always we recommend that you contact your college or university directly for specific guidance.
My F-1 or J-1 status is set to expire but I cannot return home due to COVID-19 travel restrictions – what should I do?
If your current valid non-immigrant student status is set to expire, and you cannot return to your home country due to COVID-19 travel restrictions, you should contact an immigration attorney to see what options you may have. You may be able to extend your current status/program, file a change of status here in the U.S. etc.
As of the date of this post, the U.S. government has not announced any kind of automatic extension or extended grace period even though commercial flights to specific countries may not be available due to country-specific travel restrictions. Unless that changes, it is critical that you take the necessary steps to avoid falling out of status.
I’m a current or former F-1 or J-1 visa holder and I received a Stimulus Check from the IRS – what should I do?
Their advice may be to return the check to the IRS, depending on the circumstances. They explain that F-1and J-1 visa holders are generally considered non-residents for tax purposes for their first 5 calendar years in the U.S., and therefore should likely not have received a stimulus check. They also advise that you double-check that you correctly filed your taxes, as you may have used the wrong form and received payment in error. They caution that failure to return a payment issued in error may result in the IRS requesting the money back at a later date. There is precedent for this as recently as 2009, so it is in your best interest to confirm and be sure.
This week, the IRS have now formally instructed anyone who has received the Stimulus Payment and will NOT be deemed a resident in 2020 to take steps to return the payment to the IRS. Please see here for more information on this.
*********Note, the above is considered general information and is not considered legal or tax advice.*********
If you or someone you know is affected by any of the above, and wishes to discuss potential immigration options, please reach out to us via our contact form here. For any and all tax questions, please reach out to Sprintax.