May 22, 2020
PPP Loan Forgiveness Application, COVID-19 Crisis & Changes to Status 
Dear Clients, Colleagues and Friends,

We hope that all of you are getting used to the new reality and keeping busy as well as enjoying family time.  

M&B has stayed on top of all of the new legal developments in the COVID-19 era and has diligently released newsletters, client alerts & updates, as well as Twitter and LinkedIn posts. But now we have some exciting news! Our website has been completely revamped with a fresh new look and a lot of new content on various legal issues, as well as a brand new blog! Check it out at

In this newsletter, we discuss the latest information regarding PPP loan forgiveness. And we are excited to introduce you to the Lightman Law Firm, Trusted NYC Immigration Lawyers. Below we have included a piece written by Doug Lightman and his team on how the COVID-19 crisis has impacted immigration law.

We have known Doug and his team for years, have worked together with them and highly recommend them for your immigration law issues. You can reach Doug at or you may contact us and we can make the introduction for you. 
PPP Loan Forgiveness Application Released by the SBA
The Small Business Administration (SBA) recently released its Payroll Protection Program (PPP) Loan Forgiveness Application , which borrowers must complete and submit to their lenders in order to apply for forgiveness of their PPP loans. The application includes instructions that answer some key questions on forgiveness of PPP loans, such as the 75% payroll costs rule, full-time equivalent employee retention requirements, and more. Some major points that this application addresses are the following:

  • Covered Period of the PPP Loan. A borrower must use its PPP loan within an 8-week (56-day) period. This 8-week covered period starts from the date that the PPP loan was disbursed to the borrower. 

  • Alternative Payroll Covered Period. As an alternative to the regular Covered Period, a borrower may choose to calculate the 8 weeks as the period starting on the first day of the borrower’s first pay period that follows the date the loan was disbursed. Borrowers who opt for the Alternative Payroll Covered Period must still use the Covered Period with respect to other costs.

  • Eligible Payroll Costs. 75% or more of the PPP loan must be used on payroll costs. Payroll costs are defined as both costs paid and incurred, but not yet paid, to employees during the Covered Period (or Alternative Payroll Covered Period). Payroll costs that have been incurred but not yet paid must be paid on or before the regular payroll date following the Covered Period (or Alternative Payroll Covered Period) in order to be eligible for loan forgiveness.

  • Eligible Non-Payroll Costs. 25% or less of the PPP loan can be used on non-payroll costs. Non-payroll costs that are eligible for forgiveness are interest payments on mortgage obligations, rent payments made pursuant to lease agreements for real or personal property of the business effective before February 15, 2020, and business utility payments for service beginning from before February 15, 2020

  • Reduction of Salary or Wages. Salaries and wages of employees must either remain the same or must not have been reduced by more than 25% during the period the PPP funds are being utilized as compared to the employees’ salary and wages between January 1, 2020 and March 31, 2020. If the salary and wage levels are reduced by more than the allowed amount, the loan forgiveness amount will be reduced.

  • Reduction of Workforce. PPP borrowers must maintain the average full-time equivalency (FTE), meaning they must have retained a certain number of full-time employees or part-time employees during the period they used the PPP loan. The application provides further instructions on how to calculate the average FTE. Full-time employees (i.e., those who work at least 40 hours per week) would count as one (1) FTE. Part-time employees’ average weekly hours worked may be added together and divided by 40 hours to calculate FTE. If the average FTE is not maintained, the amount of the PPP borrower’s loan that can be forgiven will be reduced. The amount of loan forgiveness may be reduced if the borrower reduces headcount during the Covered Period if the number of FTEs during such period is less than the average number of FTEs during either the period of (a) February 15 – June 30, 2019; or (b) January 1 – February 29, 2020. For seasonal employers (as defined by the SBA), the borrower may elect either of the previous stated look-back periods or any other 12-week period.

  • Exceptions to Reduction of Workforce. Loan forgiveness amounts will not be reduced even if the workforce was reduced compared to the reference period if: (a) the borrower provided a good-faith, written re-employment offer to an individual during the covered period of the PPP loan, and the individual rejected the rehire offer or (b) employees were terminated for cause, voluntarily resigned, or voluntarily requested and received a reduced work schedule.

  • Safe Harbor. Some borrowers may be exempt from any reduction in their loan forgiveness amount if the “safe harbor” is met. The safe harbor is met if (a) any reduction in FTEs during the Covered Period and (b) any reduction in salary during the Covered Period are restored by the borrower no later than June 30, 2020.

  • Loans Exceeding $2 Million. Borrowers who, together with their affiliates, receive an aggregate loan over $2 million must report this by checking off a box on the application (Page 3). The SBA and the U.S. Treasury have previously stated in the FAQs (No. 46) that borrowers of over $2 million in PPP loans will have to provide an adequate basis for a good-faith certification of why the large PPP loan was necessary, and may face audits. Borrowers of over $2 million in PPP loans in the aggregate should seek further guidance from their financial advisors regarding this requirement and the SBA’s affiliation rules.

For additional questions or concerns about the PPP Loan Forgiveness Application, please contact Chaim Book at , Lianne Forman at , or Sheryl Galler at

The COVID-19 Crisis and Changes of Status
C OVID-19 has wreaked havoc on the health and economic systems of the entire world. It has also closed schools and businesses, and brought international travel to an almost total standstill. One segment of the population heavily hit by these closures is the class of individuals here in the United States on temporary visas. This includes those on tourist visas, international students and scholars, and those on temporary work visas. As such, the coronavirus immigration changes of status need to be properly understood.

What is a key impact of the COVID-19 crisis on visa holders?

Many visa holders have essentially become stranded in the United States. Maybe their flight back to their home country was cancelled. Or maybe the country they are traveling back to has closed all of its airports. Or worse yet, maybe the individual has become ill with COVID-19 and it is simply not feasible or safe for them to travel.

The United States Citizenship and Immigration Services’ (USCIS) website has a good amount of information regarding the current crisis. As USCIS notes, in general, those individuals who are in the United States pursuant to an entry on a non- immigrant ( i.e. , temporary) visa, “must depart the United States before their authorized period of admission expires.”

One thing that is very key to note, and which causes some people confusion is what is meant by the “period of admission.” For example, a person may have a tourist visa (B1/B2) in their passport, that is valid for 10 years. But this does not mean that their period of admission is for ten years. When the tourist visa holder was allowed in at the border, they were admitted for a relatively short period of time.

For a tourist visa entry, this is generally a period of six months, although Customs and Border Protection (CBP) officers have the discretion to allow a period shorter than this .

How do I know when my “period of admission” expires?

In order to have a concrete idea of when your “period of admission” expires, you must get access to your I-94, which is also called the “Departure Record.” Back in the day, individuals entering the United States were often given a white card to fill out (often while still on their flight). The visitor then presented this white card and their passport to the CBP officer, and a stamp was put on the I-94 card, indicating the date of entry, place of entry ( e.g. , NYC, for New York City, or SFO, for San Francisco), and there was also an indication of how long the individual could stay until (sometimes the stamp and notation was put into the passport itself).

As noted above, for many tourist visa entries, six months was given. Now, in many airports, the passport presentation process has become more automated, and the I-94 is not physically handed to the person, but rather, a record is created online by CBP. The online I-94 indicates the name of the entrant, their date of birth, passport information (number and country of issuance), date of entry, and date until which the stay is authorized.

It is essential that you have access to this I-94 information, and a competent immigration visa attorney can assist you in finding when your period of admission is expiring.

How do I request COVID-19 immigration changes of status?

A competent and experienced visa immigration lawyer can help you ask for an extension of your period of authorized stay. As noted by USCIS, as long as your request, which is made on form I-539, is made during the period of authorized stay, you do not accrue unlawful presence during the pendency of that I-539 request. This is why it is so important to make that request quickly. And it is helpful to document things like cancellation of flights due to the coronavirus, or your own health issues.

What if I was not able to file the I-539 on time because of COVID-19?

Although it is much better to file the I-539 prior to the end of your period of authorized stay, due to the current situation, you may have an argument for “extraordinary circumstances” that can be shown to USCIS to overcome the late filing of the I-539 extension request. It is important that you work with a competent and experienced immigration lawyer so that you can put a case together that presents your stay extension request in a persuasive and efficient manner, and in a way that shows that you took due diligence to file as soon as you possibly could under the circumstances.

What if my I-94 says “D/S?”
D/S is short for “duration of status.” This is most commonly seen with those who entered on a student visa (F1). What the “duration of status” indication means is that as long as the individual is doing all of the things that they are required to do to maintain their student status in good faith, their stay remains valid.
If COVID-19 and the crisis have created a situation for you where you believe you will not be able to maintain your student status, or you have already lost this status, it is essential that you speak to an immigration lawyer immediately, to see what extension of stay options may exist for you.

What can I do if I was admitted on a work-related visa, but got laid off from my job due to the economic crisis?

More and more, we are getting calls and emails from people who were on work visas attached to a specific job, such as the H1B, E-3 or TN visa, and then the COVID-19 crisis hit the economy, and this person has been laid off. The first thing that is important to note is that for work-related visas, an individual is given a grace period of 60 days from the date they lose their job, assuming it doesn’t exceed the period of authorized stay on their I-94. So that is a built in 60 days from the date of the layoff.

Can I stay later than that 60-day grace period? What if I cannot leave the United States in 60 days due to the health crisis?

It may be possible for a person who is within the 60-day work visa grace period to make a request to “change status” to another status, such as the B1/B2 visitor visa status, with a showing of good cause. It is important that such a request be made before the 60-day grace period ends, so it is key to speak to a qualified immigration lawyer right away.

What if I was admitted under the Visa Waiver Program (VWP)?

Under normal circumstances, those who enter on the VWP cannot request extensions of stay or change their status (though they can adjust their status if married to a US citizen). This is what makes the Visa Waiver Program unique. Those on it can enter essentially without a visa, but the downside is there are no extensions or changes to the authorized stay. However, under the current situation, if you entered on the VWP and find yourself in a circumstance where it is simply impossible to leave, then you may be able to request a form of relief called “Satisfactory Departure.”

This request can be made with Customs and Border Protection (CBP), depending on various circumstances. A grant of Satisfactory Departure by CBP can lead to the individual getting up to an extra 30 days to leave the United States without being considered to having violated their VWP entry and exit requirements. And due to the seriousness of the pandemic, it may even be possible to ask for a second Satisfactory Departure grant, if the person who entered on VWP is already on their first grant.

This is, of course, a case by case situation, and it is key to speak to a competent immigration lawyer about your particular set of circumstances.

Can I do these requests by myself or should I hire an immigration lawyer?

We are truly in uncharted territory with the COVID-19 epidemic and crisis. Never in most people’s memory has such a total shutdown of society happened. The effects on the immigration and visa system have been striking. With requests before the Immigration authorities during normal times, it was always best to have an  experienced immigration lawyer on your side . Now, with a crisis and the stakes even higher, it definitely makes sense to have a competent lawyer to help you through the process.

For additional questions and concerns on immigration law in the midst of the COVID-19 pandemic, you can reach Doug Lightman at (212) 643-0985.
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