COVID-19 and Immigration
As we write this news update, each and every one of us grapples every single day with this new world order, rapidly evolving events that just a month ago seemed unimaginable. For U.S. citizens who enjoy the full rights and privileges of citizenship, the uncertainty of these times is hard enough. Imagine, however, the fears and anxieties of our immigrant communities, where jobs determine status, financial wherewithal determines the ability to obtain an immigration benefit, and where detention for civil immigration offenses and release can literally mean the difference between life and death.
We have devoted most of this newsletter to the immigration laws, process, and procedural issues impacted by COVID-19 and provide below an update on the various policy changes by the federal agencies that administer immigration laws and procedures. Key court challenges are also summarized.
Department of Homeland Security: USCIS, ICE, and CBP
USCIS: Many immigration benefits and requests are submitted to USCIS service centers by mail and those offices continue to operate and are processing cases. Receipt notices are being issued, as are work permits, travel permits, green cards, I-797 Approval Notices, and other official notices. And, while requests for evidence (RFEs) and notices of intent to deny (NOIDs) are also being issued, for those notices dated between March 1, 2020 and May 1, 2020, responses submitted within 60 calendar days after the response deadline will be considered timely filed. The following are other changes in policy by USCIS:
USCIS Offices Closed Until May 3 for All In-person Services
USCIS closed its field offices, asylum offices, and application support centers to the public through May 3. That means all in-person interviews, biometrics appointment notices, and InfoPass appointments have been suspended. All scheduled appointments are being automatically rescheduled by USCIS for dates in the future when USCIS resumes normal operations. Applicants (and petitioners) do not need to contact USCIS.
Scanned Signatures Accepted on Immigration Forms
USCIS announced that it will accept all benefit forms and documents with scanned, faxed, or photocopied original, handwritten signatures for submission with USCIS, eliminating the need for petitioners, applicants, and beneficiaries to mail hard copy original documents. Electronic signatures, however, are NOT acceptable. Signatories should retain their original signed documents in case USCIS requests them. USCIS has not, however, eliminated original photo requirements for those forms that require them.
USCIS to Reuse Biometrics for Work Permit Renewals
Applicants who file I-765 work permit extensions will have their applications processed using previously submitted biometrics. Whether USCIS issues work permits (and travel permits) for first time applicants remains to be seen, as no announcement from USCIS has been made.
USCIS Has NOT Issued Automatic Maintenance of Status for Nonimmigrants or Extension of Immigration Benefit Deadlines
While USCIS has made accommodations for the filing of some cases and is holding others in abeyance without prejudice to the applicants, it has not, significantly, instituted a nationwide policy automatically extending status for those currently in status or extending immigration benefit deadlines, which would alleviate the pressure and anxiety confronted by a myriad of nonimmigrants, their employers, and other affected by status issues. In response, the American Immigration Lawyers Association (AILA) filed a complaint against USCIS in U.S. district court requesting the immediate suspension of immigration benefit deadlines and the maintenance of status for nonimmigrants in the United States. AILA Director of Federal Litigation Jesse Bless said, “USCIS has every power to immediately and temporarily toll any and all immigration-related deadlines and expiration of status to the benefit of U.S. employers, lawfully admitted foreign nationals, and the public. Many of those fighting on the front lines – our nurses and healthcare workers – are foreign nationals on nonimmigrant visas. At present, immigration attorneys seeking to effectively represent U.S. employers and foreign nationals face a dangerous catch-22: risk exposure and try to protect their clients’ immigration status, or protect themselves and risk putting their clients’ cases or rights in jeopardy.”
Other DHS/USCIS-Related Issues
Obviously, the pandemic is wreaking havoc with being able to predict with any semblance of certainly when cases in the pipeline will be adjudicated. Common sense tells us that the processing of cases where anything in-person is required will be delayed. Will, however, USCIS waive the interview requirements for employment-based adjustment of status cases as it has in the past? Will it waive interviews for parent-child adjustment cases? Will it conduct telephonic interviews for marriage-based cases? Each day new issues of concern to nonimmigrants and immigrants alike arise.
One recent concern of intending immigrants is how the receipt of unemployment benefits could impact their case. USCIS has stated that unemployment benefits are not considered by USCIS in a public-charge inadmissibility determination because unemployment insurance is considered by USCIS as an “earned” benefit. (Whether a foreign national on a work visa can apply for and receive unemployment benefits is another matter and may vary from state to state. Most states are beginning to provide specific guidance on applying for these benefits during the COVID-19 crisis on their unemployment websites.) Furthermore, the one-time payments called recovery rebates (or commonly known as “stimulus checks”) to help individuals recover from the economic impacts of the COVID-19 pandemic under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, are structured as tax credits and are not taken into account for the purpose of a public charge determination.
USCIS also has announced that it will not consider testing, treatment, or preventative care (including vaccines, if a vaccine becomes available) related to COVID-19 as part of a public-charge determination, nor as related to the public-benefit condition applicable to certain nonimmigrants seeking an extension of stay or change of status, even if such treatment is provided or paid for by one or more public benefits (e.g., federally funded Medicaid). USCIS has indicated that such treatment or preventive service “will not negatively affect any alien as part of a future public charge analysis.”
For nonimmigrant workers, furloughs and terminations mean that they are out of status, although generally most will have a 60-day grace period to find new employment or be rehired. For their employers, rehires mean new I-9s. DHS has announced, however, that employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Section 2 documents remotely (e.g., via video link, fax, email, etc.) and obtain, inspect, and retain copies of the documents within three business days for purposes of completing Section 2 of the I-9. Employers who avail themselves of this option must provide written documentation of their remote on-boarding and telework policy for each employee. Additionally, employers who were served a Notice of Inspection (NOI) by DHS during the month of March and have not already responded will be granted an automatic extension for 60 days from the effective date. At the end of the 60-day extension period, DHS will determine if an additional extension will be granted.
ICE and Interior Enforcement: ICE continues to remain operational during the COVID-19 pandemic; however, the agency has promised to refocus its enforcement priorities. On March 18, ICE ERO (Enforcement and Removal Operations) announced that it would focus enforcement on public safety risks and individuals subject to mandatory detention based on criminal grounds. The agency also announced that it would not carry out enforcement operations at or near healthcare facilities, such as hospitals, doctors’ offices, accredited health clinics, and emergent or urgent care facilities, except in the most extraordinary of circumstances. Homeland Security Investigations (HSI) will continue its work with prosecutors from the Department of Justice in carrying out investigations into child exploitation, human trafficking, human smuggling, gangs, and narcotics trafficking. The following changes have also been implemented by the agency in response to COVID-19:
Bonds May Only Be Posted at ICE ERO Locations with Windows
ICE will limit the acceptance of bonds to locations with “bond windows” or other appropriate barriers that will limit exposure to staff. Locally, this means that individuals no longer will be able to post bonds at Krome or Tampa. As of March 18, 2020, ICE will only accept bond at the following offices: Miramar, Orlando, San Juan and Jacksonville.
Stays of Removal May Be Filed via Mail
ICE announced that it will permit Stays of Removal (Form I-246), to be filed through the mail, accompanied by money orders and certified funds.
No Social Visits for Detainees
ICE has temporarily suspended social visitation in all of its detention facilities. Communication between family members and detainees is still available via telephone. In-person visitation is still permitted for legal representatives. Prior to undergoing the visit, legal representatives must undergo the same screening as staff members to enter the facility and are required to bring their own personal protective equipment.
Potential Release of Vulnerable Detainees
ICE identified 600 potential vulnerable detainees eligible for release amid the COVID-19 outbreak. As of April 7, the agency reported that more than 160 vulnerable detainees have been released. ICE indicated it would make is determinations based on guidance from the Centers for Disease Control and will review cases for individuals who are over the age of 60 and those who are pregnant. While it is encouraging that some detained individuals are being released, the response is inadequate to address the humanitarian crisis, as there are over 35,000 ICE detainees in overcrowded detention centers that are ripe for mass infections and casualties.
Civil Rights Organizations File Lawsuits Against ICE to Secure Release of Detainees
While U.S. jails and federal prisons are releasing inmates throughout the country as a result of the COVID-19 epidemic, ICE has not made a similar effort to release immigrants who are currently detained. Currently, there are approximately 35,000 inmates detained by ICE and more than 60 percent of them do not have a criminal record. Only a small percentage of ICE detainees have been convicted of a violent crime.
Immigration advocates, human rights groups, politicians, doctors, and immigration judges have called for the release of nonviolent ICE detainees amid the pandemic. ICE detainees are particularly vulnerable given the unsanitary conditions of the facilities and the unavoidable lack of “social distancing.” Immigration detention centers have been scrutinized and sued for providing substandard medical care that has resulted in the death of inmates. The spread of COVID-19 in immigration facilities also posses a medical risk to ICE agents, medical personnel, contract workers, and individuals who work in detention facilities and their families.
In response to ICE’s inaction, the ACLU, Southern Poverty Law Center, Northwest Immigrants Project, and other civil rights organizations have filed lawsuits against ICE to secure the release of medically vulnerable detainees. Currently, federal courts in California, Washington, and Louisiana are considering the release of other ICE detainees amidst the COVID-19 outbreak. In Maryland, ICE detainees held in a Jessup facility will begin COVID-19 testing as a result of a lawsuit; however, the judge in that case declined to release detainee.
In another suit, rights groups filed a motion for an emergency restraining order (TRO) to seek a temporary pause all in-person immigration court hearings and to facilitate confidential communications between detained individuals and their attorneys. The hope behind the TRO is that the temporary pause would, among other policy changes, allow immigration courts and ICE to adopt practices that would allow for remote hearings via teleconference.
Continued detention of individuals detained by ICE also possesses logistical challenges and health risks to their immigration attorneys. While immigration courts have postponed non-detained hearings through May 1, detained hearings continue to be heard, exposing attorneys to risks of exposure to COVID-19 at immigration courts and detention centers. And, as of March 25, attorneys representing detained immigrants are required to provided their own personal protective equipment (PPE) when visiting clients or making an in-person appearance in court.
Meanwhile, on a related note, the U.S. Circuit of Appeals for the Ninth Circuit affirmed an injunction in California requiring bond hearings for immigration detainees with removal orders who have been detained for six months or more.
CBP and Border Enforcement: One big issue of concern to foreign nationals involves their admission to the United States to maintain their status, such as lawful permanent residents (LPRs) who have been outside of the U.S. for six months or more, and those entrants who are required to depart the U.S. at the conclusion of their 90-day period of admission. USCIS has not advised on what LPRs can do to maintain their permanent-resident status if they are now stuck abroad for 12 months or more. Under the law, LPRs who are abroad for 12 months or more are presumed to have abandoned the intent to reside permanently in the United States and can inadvertently lose their green cards. Presumably, those LPRs outside of the U.S. for 6-12 months will be able to demonstrate that their lengthy departure was clearly beyond their control and will be admitted without incident. Foreign nationals are encouraged to document their intent to return to the United States. For ESTA entrants who are unable to depart the U.S. and who are not permitted to file an application to extend their stay, many airport deferred-inspection offices are accepting “satisfactory departure” requests for up to 30 days. Presumably those requests can be extended.
Department of State and U.S. Embassies Abroad: All U.S. embassies and consulates have suspended all routine nonimmigrant and immigrant visa services, and no announcement has been made about when DOS plans to reopen them. It is likely that posts will reopen on a rolling basis depending on the circumstances on the ground. In fact, little guidance has been issued. The National Visa Center (“NVC”), which vets most immigrant visa applications for consular processing, continues to operate and is processing cases. As a result of the COVID-19 global outbreak, the NVC has had to temporarily reduce its staffing footprint. NVC further advised that only urgent humanitarian or medical inquiries, or necessary case updates may still make use of the Ask NVC form.
Automatic Extension of J-1 Visas
DOS has advised program sponsors that it will provide two-month extensions to certain J-1 exchange visitors to program end dates in SEVIS (the Student and Exchange Visitor Information System) on active records with a program end date between April 1 and May 31, 2020. In addition, those in J-1 visa status who completed their exchange program in March but remain in the U.S. due to circumstances beyond their control (such as lack of flights home, etc.) may be able to reinstate or extend program end date to May 31, 2020. Program sponsors were advised to submit the necessary documentation by April 15.
DOS Update on Visas for Medical Professionals
The State Department has advised that medical professionals with an approved U.S. nonimmigrant or immigrant visa petition (I-129 or I-140 with a current priority date, or similar), or a certificate of eligibility in an approved exchange visitor program (DS-2019), particularly those working to treat or mitigate the effects of COVID-19, should review the website of their nearest U.S. embassy or consulate for procedures to request an emergency visa appointment. U.S. embassies and consulates will continue to provide emergency and mission critical visa services to the extent possible, given resource constraints and local government restrictions.
Other DOS Concerns
The State Department has not directly addressed the issue of how unemployment benefits will affect public-charge determinations made by consular officers at U.S. consulates overseas, nor has it confirmed whether treatment or care related to COVID-19 will be considered as part of its public charge totality-of-the-circumstances analysis.
Department of Labor: While the Department of Labor (DOL) has a limited role in immigration-related cases, it plays a significant role in H-1B (and H-1B1 and E-3) petitions and PERM labor certification-based immigrant visa applications:
Guidance for H-1B, H-1B1, and E-3 Employers
H-1B, H-1B1, and E-3 employees’ terms and conditions of employment are governed by the labor condition application (LCA) filed with the DOL and submitted with their petition to USCIS. Employers should be aware that changing such employee’s employment due to COVID-19 likely requires the employer to take some sort of formal action. Change of location from the office to the worker’s home for remote work, as long as it is in the same “MSA” (Metropolitan Statistical Area), is allowed but requires a new posting of the employee’s LCA. Other types of changes in employment that occur due to COVID-19 require more drastic action, such as notifying USCIS, DOL, or filing an amendment petition with USCIS. Employers should not place a worker on nonproductive status without pay, such as furlough. Termination of the H-1B employee is the better option allowing for more flexibility and a 60-day grace period for the employee. Changing a worker’s hours from full-time to part-time employment requires filing a new LCA with DOL and an amendment petition with USCIS. Fortunately, USCIS and DOL are providing some leniency due to COVID-19 by only requiring new LCAs or amended petitions be filed as soon as practicable or within 30 days of the change.
Deadlines Extended for PERM
Deadlines for PERM type cases, such as responding to PERM audits, notices of deficiency, or supervised recruitment have been extended. If the specific deadline falls within the period from March 13 through May 12, 2020, the employer’s response or submission of information or documentation will be considered timely if received by the appropriate processing center no later than May 12.
PERM filing deadlines also have been extended. PERM filings require posting a Notice of Filing, which must be a physical posting, and therefore, electronic posting can only supplement but not replace the physical posting. For this reason, some employers are forced to wait to file the PERM until they are able to post the Notice of Filing when their businesses have their employees back at the office. However, recruitment completed within 60 days after the regulatory deadlines have passed will be accepted (when the recruitment may have become stale) to provide employers with sufficient time to complete the mandatory recruitment and file a PERM application that comports with the regulations. This extension will only be allowed for cases where the employer initiated its recruitment prior on March 13, 2020. Delayed recruitment conducted in conjunction with the filing of an application for permanent labor certification must have started on or after September 15, 2019, and the filing must occur by May 12, 2020.
PERM Certifications Sent by Email
The Office of Foreign Labor Certification announced that starting March 25, and through June 30, 2020, PERM labor certification documents will be issued electronically. The complete certified PERM will arrive by email from firstname.lastname@example.org to employers and their authorized attorneys or agents, instead of arriving by mail. During this time, the emailed version of the certified PERM should be printed, and the employer, the sponsored employee, and the attorney need to sign and date prior to filing with the I-140 petition.
Department of Justice and the Immigration Courts: Like USCIS and ICE, most immigration courts and the Board of Immigration Appeals (BIA) continue to operate and are processing cases; however, some courts have temporary closures due to COVID-19. Receipt stamps continue to be issued for defensive applications, motions, pleadings, and evidentiary filings. Likewise, the courts continue to issue new hearing notices and immigration judges continue to decide motions. Similarly, the BIA continues to accept notices of appeal, briefs, and motions. While the immigration courts and BIA remain operational, nondetained immigration court hearings have been rescheduled through May 1, 2020. The following are other changes in policy affecting EOIR:
EOIR Operational Status During COVID-19
While immigration courts remain open to hear detained cases and accept in-person filings, many courts throughout the country have been disrupted as a result of the pandemic, causing temporary closures. Consequentially, EOIR created a webpage with the operational status for the BIA and courts nationwide. To receive email notifications from DOJ regarding closures, standing orders, and other changes, subscribe here.
Standing Orders in Local Immigration Courts
The Immigration Court Practice Manual is now being frequently updated to include standing orders at local courts (see Appendix R). As of March 25, there are standing orders specific to the courts at Adelanto, Arlington, Atlanta, Baltimore, Batavia, Boston, Buffalo, Chicago, Cleveland, Conroe, Dallas, Elizabeth, Florence, Hartford, Kansas City, Las Vegas, New York-Varick, Omaha, Pearsall, San Antonio, Lumpkin, Tacoma, Tucson, and York. While some standing orders allow for telephonic appearances without email, others require notification to the court ahead of time, but by less formal means, including by email.
EOIR Accept Filings via Email
EOIR has accepted temporary email accounts for immigration courts and the BIA to facilitate electronic filing. Likewise, digital and photocopies of signatures are now acceptable for filings with EOIR and the BIA; the BIA is only accepting briefs, motions, and new entrances of appearances via email. Notices of Appeal still need to be filed via mail or in person.
Bar Associations Condemn Racism and Xenophobia Related to COVID-19
More than 1,000 hateful acts of discrimination, including serious violent acts, directed toward Asians and Asian Americans have been reported in the last two weeks of March, with new incidents coming in daily. These hateful acts have been committed against Asians and Asian Americans of all ages, with victims as young as two years old. Numerous bar associations have come out to denounce these hateful acts in the strongest terms, and have urged others to join in calling out this racism, educating the public, holding perpetrators accountable, and working together during these times of immense hardship in America.
Rhetoric such as referring to the coronavirus as the “Chinese Virus,” “Wuhan Virus,” or otherwise “foreign” virus has fanned and been tied to the rise of hateful acts toward Asians and Asian Americans. The World Health Organization (WHO) and the Centers for Disease Control and Prevention (CDC) have specifically stated that using such terms creates harmful stigma against ethnic and minority groups, and further endangers public health.
Federal, state, and local law enforcement authorities are urged to investigate and prosecute such unlawful acts. We hope they do. Hotlines have been set up in communities for the public to report anti-Asian incidents.
New More-Stringent Requirements in “Cancellation of Removal” Cases Involving Medical Hardship; Could Set Precedent for Other Hardship Cases
On March 31, the Board of Immigration Appeals (BIA), the appellate level administrative court for immigration matters, held in a cancellation of removal case (a remedy available to LPRs who are in deportation proceedings) that, to the extent that a claim is based on the health of a qualifying relative, an applicant needs to establish that the relative has a (1) serious medical condition, and (2) if he or she is accompanying the applicant to the country of removal, that adequate medical care for the claimed condition is not reasonably available in that country.
While the Board’s decision involved a cancellation of removal case, it could set a precedent for other immigration applications that require proving hardship to a qualifying relative. For instance, unlawful presence, fraud, some two-year foreign residency, and some criminal inadmissibility waivers require that a foreign national prove hardship to a qualifying relative. It is important to note that while the standard of hardship in inadmissibility waivers is lower than that of cancellation of removal, these types of applications involve consideration of the same factors, including medical hardship.
The Board has long held that the health of the qualifying relatives is a relevant factor to the hardship analysis. This recent decision specifies that showing that a qualifying relative suffers from health complications is insufficient. Applicants have the burden of showing that the medical condition suffered by the qualifying relative is both serious and that medical care is not reasonably available in the country of removal.
In its decision, the BIA did not define a “serious” medical condition. Rather, it held that applicants must provide persuasive evidence that “refers to specific facts” in order to meet their burden. The decision acknowledges that applicants lack medical expertise and would need to submit reliable corroborating evidence to prove the medical condition was serious.
Likewise, the BIA did not define what constitutes “reasonably available” medical care in the country of removal and the evidence required to prove that medical care is unavailable. Also, the decision only discusses how medical hardship is analyzed if a qualifying relative is forced to return the foreign national’s country of removal; it does not address what should be considered if there is a separation as a result of the removal. In many instances, a qualifying relative’s condition could deteriorate as a result of a separation, as a result of loss of access to medical insurance, emotional support, and increased stress.
Overall, this decision follows a trend of Board decisions of making requirements more stringent for foreign nationals seeking immigrant benefits. Moreover, while increasing the requirements for success, the Board does not provide sufficient guidance as to how their requirements can be met. These changes create unique challenges in cases involving medical hardship. Foreign nationals will need to work closely with their attorneys and medical professionals to obtain the sufficient corroborating evidence. Similarly, cases involving medical hardship will require attorneys to provide deeper factual and legal analysis in order for foreign nationals to receive the immigration benefit in question.
News in Brief
H-1B Cap Reached During Registration Period: USCIS has received enough H-1B cap-subject visa petitions to exceed the statutory limit of 65,000 visas (plus 20,000 Master’s cap visas) and ran its random selection lottery. In fact, over 275,000 registrations were received this year. Employer-petitioners selected have 90 days to submit their petitions.
New I-9 Form: USCIS announced that a new version of Form I-9 (Employment Eligibility Verification) with a version date of ‘‘(Rev. 10/21/2019)’’ is available for use. Employers may continue using the prior version of the form until 4/30/20
Work Authorization Extended for Liberian DED Beneficiaries: USCIS is automatically extending DED-related EADs for Liberians covered under Deferred Enforced Departure (DED) through 1/10/21, which is the end of the wind-down period for DED.
TPS Extended for Somalia: USCIS notice extending the designation of Somalia for Temporary Protected Status (TPS) for 18 months, from 3/18/20 through 9/17/21. The re-registration period runs from 3/11/20 through 5/11/20.