Contents
- Introduction
- Operational Status of the US Citizenship and Immigration Service (USCIS) During the Crisis
- Knocking at the Door: Overseas Visa Interviews and Appointments
- Immigration Courts
- The “Public Charge” Barrier
- Can You Be Declared a “Public Charge” for Receiving Unemployment Benefits?
- Can You be Declared a “Public Charge” for Seeking Covid-19 Testing or Treatment?
- Border Closures and Travel Restrictions
- Airport Screening
- Flight Cancellations
- Immigration and Customs Enforcement (ICE)
- Deportations (Removals)
- The COVID-19 Risk to Immigration Detainees: A Potential Humanitarian Catastrophe
- The Ortuño at al.v.ICE Habeas Corpus Petition
- Special Concerns for H-1B and L-1 Status Employees
- Rejected H-1B or L-1 Petitions
- H-1B Holders Who Have Reached the Six-Year Limit
- Remote Work
- Form I-9, Employment Eligibility Verification
- Special Concerns for International Students
- International Students and Online Instruction Restrictions
- Aspiring International Students
- J-1 Exchange Visitors
- The Light at the End of the Tunnel
Introduction
It’s a safe bet that there is no aspect of the US immigration process that has remained unaffected by the Coronavirus/COVID-19 crisis. Following is a general overview of some of the adjustments that have been made. Keep in mind that the immigration coronavirus situation is evolving rapidly and that some of the information in this article may be outdated by the time you read it.
Operational Status of the US Citizenship and Immigration Service (USCIS) During the Crisis
On March 18, 2020, the US Citizenship and Immigration Services closed its offices to in-person traffic due to the coronavirus crisis. These offices include its field offices, its Application Support Centers and its asylum offices. While the closure order extends only to May 4, it can be extended, and the most reliable available information suggests that it likely will be.
Although physical USCIS offices are closed from March 2020, that doesn’t mean that all immigration processing has been suspended during the crisis — many services will continue, while some will be halted temporarily. Following are only a few examples:
- H-1B cap-subject petitions for 2021 will continue to be accepted online;
- The processing of extension requests for employment authorizations will continue;
- Premium Processing services for 129 and I-140 Petitions were suspended in March; and
- Biometric services conducted by the USCIS in the United States were suspended in March, which will delay the processing of a variety of immigration petitions that require biometric screening.
The foregoing list was meant to provide you with general information about the extent of the disruption. Further details follow below.
Knocking at the Door: Overseas Visa Interviews and Appointments
If you are applying (or intending to apply) for a US visa at a US embassy or consulate overseas, which is required for applicants located outside of the United States, you need to be aware that processing activities have been greatly curtailed since March, to the extent that routine visa services and green card applications are at a complete standstill as of the time of this writing. This state of affairs will continue until further notice.
Many if not most US embassies and consulates have canceled or will cancel all visa interviews until further notice, thereby delaying your ability to enter the United States. Whenever these embassies and consulates reopen, however, you will be able to reschedule your appointment.
Immigration Courts
At the time of this writing, some immigration courts remain open, while others are open only to receive filings and motions, and to provide services (such as hearings) for immigrants who are currently in detention. Although most closings occurred in March and many of them were originally scheduled to reopen on April 10, few believe this date is realistic.
The “Public Charge” Barrier
The Covid-19 social distancing measures are propelling the US into a deep recession if not an outright depression, as millions of people have become unemployed almost overnight. This has raised concerns among immigrants who have lost their jobs or are otherwise expecting to endure financial hardship or increased healthcare expenses.
The reason for this concern is that just as the Covid-19 virus began taking hold in the US, the Trump administration began strictly enforcing the “public charge” rule, which allows the US to deny green cards and other immigration benefits to people who are considered likely to depend on public benefits (such as food stamps) at any point in the future.
Can You Be Declared a “Public Charge” for Receiving Unemployment Benefits?
The question that most often arises is, “Will accepting unemployment benefits place my immigration status in jeopardy?” The short answer to this question is no, because unemployment benefits are not included among the class of public benefits that will trigger “public charge” scrutiny.
In any case, the first 26 weeks of unemployment benefits are administered and paid by state governments, which do not have immigration enforcement authority.
Nevertheless, losing your job could indirectly lead to a public charge designation against you. If your health insurance was provided by your employer, for example, and if you cannot afford to purchase health insurance on your own after you lose your job, your lack of health insurance can be held against you in a public charge determination. US immigration authorities, however, make public charge determinations on a case-by-case basis.
Can You be Declared a “Public Charge” for Seeking Covid-19 Testing or Treatment?
No, you cannot be designated a public charge for seeking Covid-19 testing or treatment, and this has been specifically confirmed by the USCIS itself.
The fear is that immigrants will refrain from testng and treatment out of fear of the loss of immigration benefits, and thereby pass the virus on to others, accelerating the pandemic. It is thought that immigrant communities are particularly vulnerable to the Covid-19 virus for a number of reasons.
Border Closures and Travel Restrictions
Unlike many countries, the United States has not instituted a blanket ban on foreigners entering the US. Significant restrictions do exist, however, including:
- Any foreign national who visited China (excluding Hong Kong, Taiwan and Macau) over the last 14 days cannot enter the United States.
- Residents of the Schengen border-free travel area (most of the EU) are banned from entering the US until further notice, as are non-residents who have visited the Schengen area within the last 14 days .
- Residents of and visitors to the U.K. and Ireland are subject to the same restrictions as residents of and visitors to the Schengen border-free travel area.
- Lawful permanent residents (people holding green cards) and most immediate family members of U.S. citizens are not subject to these entry restrictions.
- The land borders with Mexico and Canada are closed until further notice, with certain narrow exceptions
Airport Screening
All flights with passengers who originated from or transited through certain hard-hit regions have been routed to certain designated airports, where strict passenger screening will take place.. Those found to be ill with Covd-19 will be placed onto medical quarantine.
Flight Cancellations
Even where legal travel restrictions have not been imposed, airlines have been canceling flights due to public health concerns and economic distress, as demand for international travel collapses in the wake of the Covid-19 pandemic.
Immigration and Customs Enforcement (ICE)
Immigration and Customs Enforcement (ICE) functions as something like the immigration police for the United States. Due to the Covid-19 crisis, ICE will be focusing primarily on apprehending illegal immigrants who are subject to incarceration for criminal offenses or who otherwise pose a public safety risk. ICE will de-emphasize routine immigration enforcement for the time being in favor of the foregoing high-priority cases.
ICE has also announced that it will not apprehend anyone in or near a healthcare facility such as a hospital or clinic, except under extraordinary circumstances. The purpose of this exercise of restraint is to avoid discouraging immigrants from seeking Covid-19 related testing and treatment.
Deportations (Removals)
In March ICE has announced that for the time being it will not deport anyone to Italy, South Korea or China. Even if an immigrant is found subject to deportation to another destination (such as Mexico, for example), he will be screened for temperature, and if his temperature indicates that he has a fever, he will be temporarily placed in medical quarantine rather than deported. The purpose of this measure is to prevent contagion to other passengers.
Unfortunately, since March ICE has ceased allowing visitation at any of its detention facilities, to protect both detainees and facility staff from the Covid-19 virus.
The COVID-19 Risk to Immigration Detainees: A Potential Humanitarian Catastrophe
Covid-19 cases are starting to appear in immigration detention facilities, among both detainees and staff. Recently, for example, a Mexican national held in New Jersey tested positive for Covid-19, and an ICE detention worker at another facility in New Jersey also tested positive.
The Ortuño at al.v.ICE Habeas Corpus Petition
On March 24, 2020, lawyers for 13 immigration detainees in California filed a habeas corpus petition. The petition seeks the release of the detainees on the ground that the specific detainees suffered from risk factors such as age or medical conditions that put them at particular risk of death from Covid-19. A habeas corpus petition is a request to a judge to order the release of someone who has been unjustly detained.
The petition noted that the release of the detainees would reduce overcrowding at immigration detention facilities, thereby reducing the risk of transmission of Covid-19 to other detainees as well. Several other similar legal actions have been filed throughout the nation seeking the release of immigration detainees based on the Covid-19 crisis. The results of these petitions have been mixed, with some successes and some failures.
Special Concerns for H-1B and L-1 Status Employees
US businesses that rely on foreign nationals face some difficult choices regarding matters such as the immigration status of employees with rejected H-1B or L-1 petitions, the immigration consequences of working remotely, and obtaining Form I-9 for foreign employees. Below is a look at some of these difficulties.
Rejected H-1B or L-1 Petitions
US immigration authorities have been denying H-1B petitions at historically high rates, whether the petitioner is a first-time H-1B applicant or an existing H-1B employee seeking an extension of their H-1B status.
A problem arises when an H-1B or an L-1 petition is denied, whether submitted by a first-time applicant or by someone seeking an extension, because the rejected petitioner is then expected to leave the United States.
Under the current circumstances, however, travel restrictions could make it difficult for someone whose petition is denied to leave the US.
If he remains in the US while out of status, he could be subject to deportation and even barred from returning to the US for a several years. Spending time in the US while out of status could also jeopardize a future green card application.
One possible way of dealing with the dilemma is to ask the US Citizenship and Immigration Services to excuse a delay in departing the US due to the crisis conditions that began in March. If you anticipate encountering this problem, speak to an experienced immigration lawyer as soon as possible, because creative options might be available.
H-1B Holders Who Have Reached the Six-Year Limit
A six-year limit applies to employees in H-1B status, and this status cannot be extended further. After the expiration of the six-year period, the employee is expected to return to his home country or, at the very least, exit the United States for a third country. What are the options for such people if travel to another country is restricted?
One possible solution is to take advantage of the 30-day period for voluntary departure from the United States known as “satisfactory departure.”
Although “satisfactory departure” has not generally been applied to H-1B visa holders, it might be possible to arrange such a forbearance due to the Covid-19 crisis. If successful, this approach will buy you 30 days more time in legal status, by which time the situation may have changed in your favor.
Remote Work
In order to observe social distancing requirements without mass layoffs of workers, starting in March 2020 many employers, especially those who employ white-collar workers, began allowing their employees to work remotely with no need to gather in an office where Covid-19 could spread.
The problem here is that the H-1B and L-1 visas both require the employer to specify specific information about the employee’s work location.
If this location changes from an office to the employee’s home, is it necessary to file a new petition or a new Labor Condition Application? These questions are especially important when you consider that immigration authorities routinely conduct worksite visits to confirm the accuracy of the information contained in the original petition.
The general consensus seems to be that this inconvenience is not necessary as long as the employee is performing the same type of work, and his actual work location is within normal commuting distance of the office address listed in the information contained in his visa and LCA applications.
“Normal commuting distance” means no more than an hour’s drive away from the work location. If the work location is further away than this and continues for more than 60 days, it might be necessary to file a new LCA and an amended H-1B petition.
Form I-9, Employment Eligibility Verification
Form I-9 is used to verify the legal immigration status and employment authorization of employees working in the US, and it is expected to be submitted within three days of hiring any new employee.. Normally, completing the I-9 process requires face to face verification of the identity of the employee.
This face to face verification must take place again before the expiration of a foreign employee’s employment authorization. Employers can be severely penalized for failing to comply with these regulations.
Starting in March 2020, however, the Department of Homeland Security is now allowing these “face to face” verifications be replaced with a document inspection that can take place remotely — through video conferencing, telephone or email, for example. Face to face verification will still occur eventually, but it will take place only after the crisis is over and normal operations resume.
Special Concerns for International Students
Because of the population density of colleges and universities plus the close proximity that students experience in a classroom, most colleges and universities have moved their classes online. This move will obviously affect the approximately one million international students who study at US educational institutions.
Due to current and anticipated travel restrictions, international students face several dangers:
- Finding themselves unable to return home as the Coronavirus pandemic rages through the United States;
- Returning home (during spring break, for example, which typically occurs in March), only to discover that they cannot return to the United States to continue their studies;
- A cutoff of research funds due to a teetering economy reeling from the effects of the shutdown of much of the nation’s economy; and
- For Asian students, racial discrimination by people who seek to ostracize or blame them for the “Chinese virus” (a terms that President Trump is fond of using).
Individual schools have established systems that allow students to report instances of discrimination. Many schools have also expressed a willingness to work with students who return home and find themselves unable to return to the United States due to legal or practical travel barriers.
International Students and Online Instruction Restrictions
US government regulations typically allow international students to take only one online class per semester. What happens, however, when a university moves all of its coursework online to prevent contagion among its student population? This concern is shared by students in both F and M visa status.
Fortunately, a recent guidance document issued by ICE allows educational institutions to institute flexible policies, such as 100 percent remote coursework, without jeopardizing international students’ immigration status. Obviously, this forbearance is intended to be temporary; however, it is likely to continue for the duration of the COVID-19 crisis.
Aspiring International Students
The difficulties faced by students aspiring to study in the US are at least as formidable as the difficulties faced by currently-enrolled international students. Many countries have cancelled the administration of critical admissions tests in response to the Coronavirus crisis.
These tests include the SAT, the GRE, the TOEFL and the IELTS. Failing to take these tests, for whatever reasons, will leave international students with incomplete applications.
These tests are likely to be resumed once the crisis abates in the country that canceled it, and the US Educational Testing Service (ETS) is working with these countries to make sure that students who have already registered for such tests will not lose their seats. The TOEFL test, at least, may become available online soon., at least outside of mainland China.
Colleges and universities, many of which are financially dependent on the revenue that international students provide, are exploring flexible options with respect to application and enrollment deadlines as well as required application materials.
J-1 Exchange Visitors
The Bureau of Educational and Cultural Affairs (ECA), the bureau that oversees J-1 visa programs, is temporarily suspending J-1 programs that involve travel to and from areas with heightened risks of Covid-19 infections.
Ultimately, US embassies and consulates overseas will decide whether to issue a J-1 visa in any particular instance, and it seems likely that the issuance of J-1 visas will be greatly curtailed or perhaps even suspended.
The Light at the End of the Tunnel
All pandemics end sooner or later, and the Covid-19 pandemic in the United States is expected to peak in a matter of weeks, although the crisis will continue considerably longer than that. At some point or another, however, immigration operations are likely to return to normal.
