ICE is a federal government law enforcement agency whose responsibilities include preventing people from entering the United States illegally, apprehending people who are illegally present in the US, detaining certain immigrants, and similar police operations. Because ICE’s resources and activities have been hampered by the coronavirus crisis, the agency has issued a statement detailing its enforcement priorities during the crisis.
Places Where ICE Generally Does Not Operate
Under normal circumstances, ICE will not conduct surveillance, apprehensions, arrests, etc. in the vicinity of hospitals or other medical facilities, schools, or churches and other places of worship. The reason for the rules is that ICE does not wish to discourage these activities by scaring undocumented immigrants away from the locations where they are held.
This policy is especially important for medical facilities because failure to seek treatment when infected with coronavirus could lead to its transmission of the virus to just about anyone. ICE may conduct activities near these locations, however, if:
- ICE has received a special waiver, which it must apply for in advance; or
- “Exigent circumstances” (for example, a dangerous criminal fugitive deliberately flees into a hospital in order to avoid apprehension while ICE agents are in hot pursuit.
People Subject to the Intensive Supervision of Aliens Program (ISAP)
The ISAP program is an alternative to the detention of immigrants, who ICE believes are likely to commit criminal acts, skip immigration hearings, or hide from immigration authorities to avoid deportation if they are not monitored. Although strictly speaking, people in the ISAP program are not in detention, their whereabouts and activities are closely monitored by ICE, and evasion of ISAP restrictions could result in detention.
ISAP participants are generally required to attend appointments with ICE officers (sometimes at the participants’ homes), and check-in with their case officers at regular intervals. Problems that have arisen during the coronavirus crisis include, but are not necessarily limited to, the following:
- ICE has suspended in-person appointments due to the coronavirus crisis;
- The coronavirus crisis has made it difficult for many ISAP participants to attend their appointments even if they are not canceled; and
- Case specialists are often difficult to contact by telephone.
If you face one of these problems, you should know that ICE is taking all of these difficulties into consideration. Your case specialist will likely contact you over the telephone as a substitute for an in-person appointment. If you have a scheduled in-person appointment, call your case specialist before your appointment.is scheduled, regardless of whether or not you are able to attend.
If you cannot get through by phone, leave a message with your name, A-number, and telephone number, and your case specialist will call you at some point. Be sure to keep a record of the date, time, and content of any calls you make or messages you leave — you may need this information later.
Medical Screening Prior to Removals/Deportations
If you are ordered deported, you will be subject to a medical screening before you board your flight out of the United States. If you are sent directly home without ever leaving the airport, this screening will take place at the airport. In other cases, you will be subject to a medical screening before you are taken to the airport.
You will be subject to a temperature screening prior to boarding the aircraft, and If you register a temperature of 99 degrees Fahrenheit (37.2 degrees Celsius) or above, you will be classified as likely to have contracted Covid-19. In this case, you will not be allowed to board the aircraft, and you will be taken to an ICE facility in the US for additional screening.
Release of Immigration Detainees Due to Covid-19
The coronavirus seems to be spreading rapidly through certain immigration detention facilities, due to difficulties in maintaining social distancing. In response, ICE has released several hundred detainees across the nation, many of them with ankle bracelets to keep track of their whereabouts.
The detainees who were released were generally considered the lowest risk detainees based on their immigration and criminal history. At th9is point it seems unlikely that large numbers of detainees will be released.
International Criticism
Currently, Customs Enforcement (ICE) is holding nearly 40,000 immigration detainees at immigration detention facilities, and sometimes local jails, throughout the United States. Many detainees have participated in hunger strikes to protest inadequate sanitation and hygiene at these facilities. The US government has been harshly criticized by the international human rights organization Amnesty International as well as other observers.
As the world continues to navigate through these unconventional times, the US is set to take any and all remedial steps to bring its country back into normalcy. Slowly, states are beginning to lift bans and prohibitions on social gatherings and non-essential activities, while implementing a step-by-step plan to open up their local economy.
Nationally, the US government is ready for the country and its constituents to get back on their feet, while still exercising precaution to prevent further spread of the virus.
Although US officials seem to believe that the worst of the pandemic is behind us, they continue to halt various processes of the immigration system, basically stating, “because of the coronavirus.” Legally, the President has the constitutional power to make discretionary decisions to protect and strengthen national security.
It may include making decisions to promote the health and well-being of the US people. However, many advocates are growing concerned that the Trump administration is using the virus as its justification–or facade–to further its objectives of restricting immigration.
For one, the administration continues its disdain on US asylum law as the Department of Justice and Executive Office for Immigration Review released its May 10, 2020, joint statement on the rescheduling of the Migrant Protection Protocol (“MPP”) hearings. It constitutes the fourth statement of postponement for asylum-seekers placed in Mexico awaiting their hearing determining relief.
So far, those with scheduled hearings since April 22 have been postponed, at minimum, for two months, making asylum claimants more vulnerable to the instability of the process while forcing them to continue living in violent and dangerous conditions in Mexico.
Besides, in-person document service has been stopped, meaning temporary suspension of issuing new tear sheets, which allow people subject to MPP to live and work in Mexico while waiting for their court hearings.
The DOJ and DHS consider these actions as their continued effort to “take necessary measures to prevent the spread of COVID-19 by limiting in-person interaction.” What the executive branch fails to consider is how these actions portray the ignorance towards the lives of asylum seekers, subjecting them to further dangerous and poor conditions after their tremendous journey to the US fleeing persecution.
Even those with legal status within the US live in fear of mistreatment due to government action under pandemic pressures. The President has been receiving pressure by House senators encouraging the restriction of work visas for international students and specialized workers in efforts to curtail the rising unemployment rate of US citizens.
Senators argue that restrictions must be put in place as foreign workers are “taking jobs away from Americans.” Furthermore, many individuals with legal status who have lost their jobs and qualify for unemployment benefits refrain from filing, as they fear it may jeopardize their immigration cases. However, the public charge rule does not apply to those renewing their green cards or filing citizenship applications.
Despite that fact, immigrants still have the genuine perception that the government will somehow take into account the collection of unemployment benefits and will alter the outcome of their case.
Lastly, millions around the world who anxiously await their fate in the 2021 Diversity Immigration Visa Program must continue to anticipate their outcome. On May 5, 2020, the US Department of State was supposed to disclose the names of those 55,000 selected for permanent resident cards;
However, due to the pandemic, the DOS has postponed the application’s availability to verify the visa lottery results. As of now, the results should be available by June 6, 2020, but until then or further postponement, the anticipation of many drags on.
Although these actions (along with many others) that the administration has implemented in response to the virus are legally within the powers of the US President, to what extent is the conduct related to protect US national security and promote the health and safety of US individuals, or in furtherance of restricting the accessibility of legal immigration? As of now, there is no clear line or distinction between the two.
In response to the coronavirus outbreak and its threat to the nation’s economy, the US Congress passed a $2.2 trillion economic stimulus package, that includes economic stimulus payments to most US citizens as well as many immigrants. If you are eligible, you can receive your payments through your private bank account (if it is registered with the Internal Revenue Service) or by paper check mailed to your home address.
Most individual adult taxpayers will receive $1,200, plus an additional $500 for each child under 17.
Married couples filing joint tax returns can receive $2,400 plus $500 for each child. The amount of your check will decrease on a sliding scale if your Adjusted Gross Income (AGI) from your most recent tax return exceeds $75,000 for an individual or $150,000 for married couples filing joint tax returns.
What You Need to Do
In most cases, as long as you qualify, you will not need to do anything to get this money. It is important, however, that:
- If you filed a federal tax return for the tax years of 2018 or 2019. If you have not done so, do so now. It is possible to do so electronically, and for this year only, late filing penalties will not begin to accumulate until July 16, 2020.
- You can also get your money faster (by bank transfer rather than by paper check) if you provide the IRS with your direct deposit bank account details. You don’t even need to do this much if the IRS already has this information. Most people provide the IRS with this information in order to receive tax refunds from the IRS.
Do You Qualify for a Payment?
Not all immigrants qualify for an economic stimulus payment. See below for information to determine whether you qualify.
If you are a not a US citizen but you otherwise qualify for a payment under the rules stated above, you have one additional barrier to surmount — you must pass one of the following two tests to qualify for a payment: (i) the lawful permanent residence test or (ii) the substantial presence test:
The Lawful Permanent Residence Test (“Green Card”) Test
You are considered eligible for a stimulus payment if you are a lawful permanent resident (a “green card” holder). If you have ever been issued a green card, you will retain this status indefinitely unless:
- You renounce your permanent residence status writing and send the renunciation letter to the USCIS;
- The USCIS terminates your permanent residence status in writing; or
- An immigration court terminates your permanent residence status by court order.
The “Substantial Presence” Test
You can qualify for a stimulus check without a green card if you pass the “substantial presence” test. To pass this test, you must have spent at least 31 days in the United States during 2020 alone, and 183 days during the 3-year period that includes 2018, 2019 and 2020.
To calculate the number of days for which you qualify to reach the benchmark of 183, however, you may count only:
- All of the days you were present in the US in 2020;
- One-third of the days you were present in the US during 2019; and,
- One-sixth of the days you were present in the US during 2018.
For example, if you spent 90 days in the US in 2020, 180 days in the US 2019 and 240 days in the US in 2018, your score will be (100% X 90 = 90) + (⅓ Xf 180=60) + (⅙ Xf 240 = 40) = 90 + 60+40= 190. Since this score exceeds 183, normally will pass the physical presence test and be eligible for a stimulus payment.
Exceptions
Unfortunately, however, additional barriers apply, even if you meet the conditions outlined above, that could prevent you from receiving an economic stimulus payment:
- You will not qualify if your presence in the US is based on an A, F, G, J, M or Q visa, or if you are in the US to receive medical treatment. If you find yourself in this situation, speak with an experienced immigration lawyer for details, because there may be a loophole available to you.
- You will not qualify for an economic stimulus payment if (i) you file your taxes using an Individual Taxpayer Identification Number (ITIN) instead of a Social Security Number (SSN); (ii) you filed a joint tax return with a spouse who used an ITIN instead of an SSN; or you filed a tax return with a qualifying child who has an ITIN instead of an SSN.
An example of an immigrant class within the foregoing problems arise are many workers in H-1B status. This exclusion has been criticized by many people, including domestic immigrant advocacy groups since it means that some US taxpayers will not receive economic stimulus payments at all.
What About the “Public Charge” Rule?
Don’t worry — your receipt of a coronavirus-based economic stimulus payment will not be held against you for the purpose of determining whether you are a public charge.
Undocumented Immigrants
Unfortunately, undocumented immigrants are ineligible for coronavirus-based economic stimulus payments.
If you are an immigrant who has lost your job in the US or been laid off, can you (or should you) seek state unemployment benefits? As is the typical case with legal questions, the answer is not simple — it is rather complex and nuanced.
The “Perfect Storm” for Immigrants: Pandemic, Recession and the Tightening of Immigration Restrictions
The coronavirus crisis is not just a pandemic — it is an economic crisis as well. Millions of people have been thrown out of work, including noncitizens and people whose presence in the US is based on a temporary visa, such as the H-1B. In addition to immigration problems that US citizens do not face, you and your family may share in the economic distress that is affecting the entire country.
The “Public Charge” Barrier
The timing couldn’t have been worse, or so it seems. The twin crises of the coronavirus pandemic and recession began just after the Trump administration announced stringent new rules on determining who is and is not a “public charge” (someone who is likely to rely on public benefits for financial support). the consequence of being designated a public charge would likely be a denial of your application.
Fortunately, although losing your job might cause you “public charge” problems (if it causes you to lose health insurance, for example) you cannot be designated a public charge simply for applying for or receiving unemployment benefits.
How Unemployment Insurance Works
“Unemployment benefits”, as they are commonly known, are essentially payouts under a state unemployment insurance program, designed to partially replace the wages you were making before you lost your job, in most cases for a period of up to 26 weeks.
Since individual states administer unemployment insurance, the rules vary somewhat from state to state. In Ohio, the limit is 26 weeks, and you receive 50 percent of your employment wages up to a maximum of $480 per week (possibly more if you have children dependents).
How to Qualify for Benefits
Although state rules differ slightly, under Ohio law, to qualify for unemployment benefits:
- You must have worked at least 20 weeks during your one-year “base period.”;
- You must have earned an average of at least $269 per week (as of 2020);
- You must be unemployed through no fault of your own (you cannot have quit your job without good reason, and you cannot have been fired for good cause);
- You must be able to work;
- You must be available for work; and
- You must be actively looking for work.
Coronavirus-related Expansion of Unemployment Benefits (The CARES Act)
Under the CARES Act, eligible unemployed persons can receive:
- Up to an additional $600 per week in unemployment benefits until July 31, 2020;
- Up to an additional 13 weeks of unemployment benefits (this means a total of 39 weeks in Ohio and most other states); and
- Certain unemployment benefits if you are self-employed or are a “gig” worker.
Remember, all of these benefits are added to whatever your state’s unemployment insurance program provides.
Lawful Permanent Residents
Lawful permanent residents are eligible for unemployment benefits under the same terms as US citizens are.
Immigrants Holding an EAD (Employment Authorization Document)
If you hold an unrestricted EAD Employment Authorization Document) that doesn’t restrict you to a particular job (spouses of H-1B workers, DACA recipients, and certain other immigration categories), you are likely to be eligible for unemployment benefits under the same terms as US citizens are.
The Bad News: Immigrants on H-1B and Other Employment-Based Visas
If your presence in the US is based on a nonimmigrant employment immigration status such as H-1B or L-1 status, you cannot change jobs without a new visa petition being filed on your behalf by your new employer.
Because of this restriction, you might not be considered “able” or “available” for work, and therefore you might be found ineligible for unemployment benefits unless you have already found a new employer and a new immigration visa on your behalf is currently pending adjudication by the USCIS.
More Bad News: Undocumented Workers
Unfortunately, undocumented workers are not eligible for unemployment benefits — they are not considered “available” since it is illegal for them to work in the United States. The only possible exception might be if you were working legally during your base period (see above) but have since been accruing unlawful presence, meaning that your presence in the US did not become illegal until after the end of your base period
If you are in any of these situations, however, speak with an experienced immigration attorney before you file an application for unemployment benefits.
If you are a “non-resident alien” (someone located in the United States, legally or illegally, who is not a citizen and who does not hold a valid green card), accruing unlawful presence in the US can cause a lot of problems. You might be detained, you might be departed, and you might be barred from re-entering the US for 3 years, 10 years, or even permanently.
Reasons Why You Might Find Yourself Unable to Depart the United States Before Your Immigration Status Expires
Unfortunately, the coronavirus crisis has erected several barriers that could make it difficult for you to avoid accruing unlawful presence in the US, including:
- You lose your job while relying on a nonimmigrant work visa (such as the H-1B) to justify your presence in the US;
- The USCIS delays the processing of your visa extension of change of status application due to the coronavirus crisis;
- You can’t book an open seat on a flight home;
- You can’t afford a plane ticket home, especially if prices have skyrocketed due to the necessity of flying you home indirectly by routing you through a variety of airports to circumvent local restrictions;
- You are unwilling to expose yourself and your family to possible exposure to the coronavirus while transiting through multiple airports and spending hours at a time in the close quarters of an airplane cabin;
- You are unwilling to risk going home because your home city has been much harder hit by the coronavirus pandemic than the US city where you live currently; or
- You face immigration barriers at transit airports and even at your home country’s immigration border. Many countries will not allow temporary transits through their airports, and some countries are barring even their own citizens from entry without medical documentation that can be difficult to obtain in the US. Currently, thousands of people find themselves stranded in the US for exactly these reasons.
Your Options, According to the USCIS
According to the USCIS, the following options might prevent you from accruing unlawful presence in the US, depending on the circumstances:
Applying for an Extension of Your Immigration Status
If you are eligible, you can apply for an extension of stay in the US under your current status or attempt to change to another immigration status. Some important points need to be considered, however:
- Your application must not be frivolous — in other words, you must have a decent chance of approval so that the USCIS will not treat you as someone who filed an application for an immigration benefit that they knew they didn’t qualify for, just to buy some additional time. If the USCIS considers your application frivolous, it will extend you no immigration benefits on the basis of the application.
- As long as your application is not frivolous and as long as it is not filed late, in many cases, you will not accrue unlawful presence during the period that the USCIS is adjudicating your application.
If your presence in the US is based on employment, this strategy could buy you up to another 240 days of lawful presence in the US even if your application is eventually rejected. By this time, however, you may have found a way to surmount the obstacle that is causing your current problems — or your application might be approved.
Late Applications and USCIS Forbearance
If you file a late application for an extension of stay or a change in status, the USCIS might still exercise forbearance and refrain from penalizing you. You will need to offer a good reason for filing late, and you will need to document this reason as thoroughly as you can. Forgiveness of a late application, however, is entirely at the discretion of the USCIS.
Visa Waiver Entrants and “Satisfactory Departure”
If you entered the US under a visa waiver program rather than under a visa, under normal circumstances you cannot extend your stay in the US. Nevertheless, under emergency conditions (possibly including the coronavirus crisis), the USCIS might grant you an extra 30 days under a principle known as “satisfactory departure.” It may even be possible for you to extend your stay for a second 30-day period under this principle.
The Last Resort: Hope for a Future Amnesty
Although the current administration has so far been notoriously inflexible in dealing with unlawful presence in the US, after the worst of the coronavirus crisis has ended, it is possible that political pressure might start to build to offer immigrants amnesty for illegal presence as long as it can be traced to unavoidable circumstances triggered by the coronavirus crisis.
Such an amnesty might even waive unlawful presence-based bars to re-entering the US for some people. Ultimately, only time will tell.
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.