Meanwhile, Enforcement Continues Despite Public Health Concerns
Much of the country has been asked and, in some cases, ordered to stay home and many government agencies, including U.S. Citizenship and Immigration Services (USCIS) and U.S. consulates abroad, have greatly curtailed their services due to Covid-19. As a result, U.S. employers are encountering difficulties ensuring continued legal status of their foreign national employees, even for essential workers, such as doctors, nurses, EMTs, and supporting staff. The same is happening to U.S. colleges and universities trying to protect their foreign students who have suddenly found themselves with no class, distance learning, and being sent home. For U.S. citizens trying to reunite with spouses and children, they are finding that already long waits are now indefinitely longer. And for immigrants themselves, even for essential immigrant workers on the front lines of this pandemic in the health care and food industries, many could go from being documented to undocumented, damaging the possibility of their future in the country. For essential undocumented immigrants who continue to work to bring food to all of us sheltering in place at home, they fear arrest, detention — where Covid-19 could rapidly spread like wildfire — and deportation for simply driving to work to continue helping all of us.
At the same time, ICE has refused to take necessary action to protect immigrants in detention from Covid-19 by releasing those that do not need to be detained. Instead, they are considering release of only 600 particularly vulnerable immigrants of a total detention population of more than 35,000. And when Acting ICE Director Matthew Albence suggested that ICE, due to Covid-19, would curtail enforcement and prioritize those who have committed crimes or pose a public safety, sources said Albence was on “thin ice” with White House hardliners like Stephen Miller. Moreover, despite calls from ICE prosecutors, immigration judges, and immigration attorneys to close immigration courts where social distancing is difficult-to-impossible to achieve, many courts remain open, even for non-emergency cases.
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said:
This does not have to be the case. DHS and the State Department have all of the authority they need to take immediate, decisive, and robust legal action to protect immigrants, their U.S. families, U.S. employers, U.S. schools, and the American public in this pandemic. But it takes political will and interest to do so.
If anyone says DHS and the Trump administration can’t act because they lack legal authority, let’s remember a few examples where they acted when their legal authority was seriously questioned. For example, when so many told President Trump and his administration to stop family separation because it was unlawful — and immoral — they continued to robustly implement and defend it for months anyway. And with so many arguing the illegality of the way the Trump administration terminated DACA, they have continued their fight all the way to the Supreme Court.
When many told the President to stop the Muslim ban due to legal concerns, including multiple courts, they fought to continue anyway, having to revise it three times to pass muster even with this conservative Supreme Court. The same is true with the border wall and all of the changes they have made on asylum. Most recently, the Trump administration was extremely quick to use Covid-19 and very questionable legal authority to essentially end asylum at the southern border. In all of these actions, so many legal scholars have argued their illegality and many courts in fact have actually ruled them to be unlawful.
Here and now, in response to the Covid-19 pandemic, the Immigration and Nationality Act, implementing regulations, and policies leave a lot more legal room for this administration to do the right thing. The issue is not legality, but simply political will and interest. Where there is a will, there is a way.
David Leopold, Counsel to DHS Watch, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association, said:
Vice President Pence recently praised and thanked essential workers in the food industry saying, ‘And so, on behalf of the President, on behalf of our entire team, and on behalf of a grateful nation, let me just say to all of you that are working in the food industry at every level across the country: Just understand that you are vital. You are giving a great service to the people of the United States of America. And we need you to continue, as a part of what we call our critical infrastructure, to show up and do your job and know that we’re going to continue to work tirelessly in working with all of your companies to make sure that that workplace is safe.’ If the Vice President truly believes essential workers in healthcare and food industries are vital, then he and others at the White House should pick up the phone and order DHS and the State Department to immediately take appropriate action to protect essential immigrant workers.
The following is a non-exhaustive and growing list of immigration issues requiring DHS action due to Covid-19, showing that the vast majority remain unaddressed, some partially addressed, and only a few complete. Below that are brief explanations of the issues.
REQUESTS FOR FLEXIBILITY ON IMMIGRATION TO ADDRESS COVID-19
|INCOMPLETE||PARTIALLY COMPLETE||FULLY COMPLETE|
Work authorization extension
To extend an expiring work authorizations, completed and signed paper forms sent through traditional mail, along with a money order, cashier’s check or personal check, are often required. Although USCIS is now allowing copies of “wet signatures,” it still requires “wet signatures” be obtained and saved in files. Therefore, if an attorney has been retained, the attorney must obtain a “wet signature” from the individual, payment, and draft a written check, all of which generally occurs in an office that most have been warned to stay away from except for essential reasons. In-person contact is also required of government officials to receive these documents, open and organize them, assign and get them to adjudicators for processing. Without proper work authorization, an individual may not continue to work legally and be paid by an employer.
Authorized periods of stay
Like work authorization, many extensions of authorized periods of stay are considered only through formal submission of paper forms and payment by money order or cashier’s or personal checks through traditional mail, all of which suffer similar person-to-person contact issues as work authorization extensions. Penalties for falling out of status include a three- or ten-year bar from returning to the U.S. depending upon the length of the unlawful presence. For those who have exhausted a maximum period of stay under their visa category but who cannot timely and safely depart due to Covid-19 travel restrictions, without grace periods or deferred action granted by DHS, they could accrue unlawful presence that could result in a three- or ten-year bar from returning to the U.S. While USCIS issued new guidance that attempts to address these issues, it largely reiterates current policy allowing for some flexibility on a case-by-case basis if requested and backed by evidence that may be difficult to obtain during a pandemic, especially for essential workers on the front lines of this pandemic. The only new accommodation is to allow for an additional extension beyond the current single 30-day extension for visa waiver program participants.
For those who fall out of status due to extraordinary circumstances of Covid-19, without a change in the unlawful presence policy, they may accrue unlawful presence that could result in a three- or ten-year bar from returning to the U.S.
Essential workers under great threat of deportation
- DACA: Over 200,000 DACA recipients are essential workers under Covid-19, including 27,000 health care workers, yet the Trump administration has all of the authority it needs to reinstate the program it affirmatively ended.
- TPS: According to the Center for American Progress, an estimated 131,300 TPS holders from El Salvador, Honduras, and Haiti are essential workers during the Covid-19 pandemic. But for court orders, the Trump administration would have ended their authorized status and work permits long ago. Moreover, the Trump administration continues to litigate to reverse those court orders.
- Health care workers: Thousands of documented immigrant health care workers in various visa categories could lose status without automatic extensions in work and status authorization and flexibility on general requirements to maintain status.
- Undocumented immigrants: Millions of undocumented immigrants are on the front lines working in the food and health care industries; yet, they face potential arrest, detention, and deportation every time they go to work.
Changes in workplace
Many immigrant workers, even some doctors moving to some hospitals to assist Covid-19 hot spots, need to submit paper forms and wait for approval, a long and inefficient process, before they may switch job locations. Because USCIS has suspended premium processing (15-day processing) due to Covid-19, there is no way to speed up this process, even for doctors on the front lines.
- Extensions: In many cases, to extend lawful status and work authorization, new biometrics need to be taken in person, but Application Support Centers where biometrics are taken are closed. USCIS has instituted a new policy to reuse previously submitted biometrics to address this issue, but only for work authorization extensions.
- New applicants: For most new applicants, biometrics must be obtained before the request is adjudicated, but Applicant Support Centers are closed. In many cases, USCIS may already have biometrics from previous applications. Yet, USCIS requires new biometrics for applications to be adjudicated.
Deadlines to submit documents
To maintain legal status or obtain legal status, there are many deadlines to submit paper-based forms that require original documents, supporting documentation, wet signatures (even with recent “wet signature” flexibility), and paper checks or money orders usually requiring person-to-person contact and often materials that may be unavailable due to Covid-19 closures across the government and the world. Without deadline extensions, many may fall out of status or be unable to apply, even if they are essential workers.
- H-1B deadlines
- “Cap gap”
- Requests for Evidence and Notices of Intent to Deny (new guidance was issued that provided deadline flexibility)
- Petitions to remove conditions
- One-year asylum filing deadline
- Request for Evidence/Notice of Intent to Deny/Notice of Intent to Revoke/Notice of Intent to Terminate responses: USCIS recently extended deadlines for responses up to 60 additional days. Although this extension applies to many RFEs/NOIDs/NOIT/NOIR, it does not apply for those issued before March 1.
- USCIS appeals or motions to reconsider: To appeal, reopen or reconsider a decision, a form (I-290B) must generally be submitted within 30 days of decision. USCIS recently provided new guidance that extended this deadline to 60 days. Though this extension applies to many appeals, it applies only to cases decided after March 1.
In-person contact with DHS and U.S. consulates abroad
Many immigration benefits require in-person contact with U.S. government employees. Without flexibility on these in-person contact requirements, these immigration and naturalization benefits will be stalled, even for essential workers. Failure to attend these in-person requirements currently could be considered abandonment of the application.
- Naturalization oaths generally require public ceremonies that could be accomplished through virtual means; but for the public ceremony, hundreds of thousands of completely adjudicated naturalization applicants could be delayed due to Covid-19 without utilization of virtual means.
- Employment-based visa applicant interviews
- Family-based visa applicant interviews
- Consulate interview requirement for non-immigrant visas
- Asylum application interviews
- In-person naturalization oaths
Though the Trump administration has provided some guidance explaining that the new public charge rule will not apply to Covid-19 testing and treatment, it continues to implement the new regulation, including requiring notarization of sponsor forms which would require in-person contact and is likely largely unavailable at this time.
Colleges and universities across the country have closed, reduced courses, and/or resorted to distance learning, in addition to sending many students home. According to the President’s Alliance on Higher Education and Immigration and NAFSA, these actions may jeopardize the legal status of many students without flexibility on:
- Requirements to maintain status, such as full course of study, distance learning, full course of study: ICE recently announced some flexibility
- School reporting requirements: ICE recently announced some flexibility
- Telework for OPT students
- Students returned home to be able to file for OPT from abroad
- Periods of unemployment due to Covid-19 for OPT students
- Requiring paper forms at entry that are difficult to obtain during the Covid-19 pandemic (e.g. I-20 or DS-2019)
- Requiring updated passports since most governments across the world have curtailed services, including passport services
Lack of electronic filing system requiring person-to-person contact
Because USCIS lacks electronic filing for most requests, person-to-person contact is required for many reasons throughout the application process:
- Wet signatures: Though USCIS recently issued new guidance allowing for reproduced copies of forms with signatures, attorneys must still obtain “wet” signatures from clients and keep a copy of the “wet” form in case of audit, thereby requiring the attorney to come into contact with clients and likely work in an office.
- ETA 9089: USCIS requires the original of this form to be submitted with employment-based petitions, along with “wet signatures.” While the Department of Labor is now allowing applicants to submit copies of forms for USCIS filings, wet signatures must still be obtained and USCIS has not issued complementary guidance.
- Payments: Instead of electronic payments, many payments must be made through money order or personal or cashier’s check, thereby requiring attorneys to go into offices to prepare appropriate checks and individuals without checking accounts to obtain money orders in public establishments.
- Mail forwarding: Important documents, including receipts and decisions from USCIS are being sent to attorney offices, but most are teleworking, thereby requiring attorneys to regularly check in with offices for mail because USCIS does not allow for mail forwarding.
I-9 form compliance flexibility
When an employer hires a new employee, they must visually, in-person, and within three days of hiring inspect a new employee’s work authorization documents. With many employers and employees teleworking and avoiding in-person contact, this requirement has become dangerous to implement for employers and employees. ICE announced some flexibility regarding the in-person verification requirement, but not the three-day requirement.
Because so many government offices and other services are closed or have curtailed services due to Covid-19, many evidentiary requirements to support immigration applications may be difficult to meet without flexibility from DHS and the State Department.
LPR abandonment, re-entry permit flexibility, and naturalization
Lawful permanent residents (LPR) may have been traveling abroad when Covid-19 travel restrictions were imposed and some may have sheltered-in-place or quarantined beyond six months abroad which could, absent flexibility, could trigger a presumption of LPR abandonment. Re-entry permits for those planning to be abroad for longer than six months may be obtained only from inside the U.S., but if a person is now unexpectedly abroad for longer than six months due to Covid-19, they cannot apply while abroad. Further, LPRs who are otherwise eligible for naturalization and who sheltered abroad for six months or more as the result of Covid-19 should be presumed to have established that their absence did not disrupt their continuous residence in the U.S. for purposes of eligibility for citizenship.
Improving communication with public
USCIS has issued guidance on various accommodations due to Covid-19, sometimes by press release, website update, and/or email updates. USCIS has failed to provide a one-stop website to review all accommodations made, making it difficult to keep up with the latest materials and guidance. For example, while USCIS has a dedicated Covid-19 webpage containing multiple actions, it does not contain the important, new Covid-19 guidance regarding the new public charge rule, the new “wet signature” guidance, and the biometrics change for work authorization extensions. Moreover, during this pandemic, the elimination of direct email communication with USCIS service centers and fewer public engagement events could be reversed to ensure rapidly changing information is quickly disseminated.
Tolling age-out cases
When a person turns 21, they may lose access to certain immigration benefits. Without guidance from USCIS freezing ages, some may lose access to benefits as a result of processing delays or inability to file appropriate forms and evidence due to Covid-19
For certain victims of crime to apply for certain immigration benefits, they must submit certified documents from law enforcement agencies (LEA) which may expire before immigration applications may be timely submitted or processed due to Covid-19.
Expediting vulnerable cases
Some cases involve vulnerable populations in detention or other vulnerable people that are especially critical during Covid-19.
New medical professionals outside U.S.
The State Department recently issued guidance to allow for the visa processing of medical professionals, who have completed their USCIS process, despite the suspension of most visa processing. However, the opposite is true for medical professionals already in the U.S. who need to maintain their legal status or make changes to reflect the work they are doing on the front lines.
Requests for flexibility have been compiled from the following letters and other sources
March 16, 2020 AILA, March 23, 2020 AILA, March 23, 2020 AILA, ILRC, President’s Alliance on Higher Education and Immigration, NAFSA, March 18, 2020 CLINIC, March 20, 2020 CLINIC, March 24, 2020 ASISTA, April 7, 2020 ASISTA, Center for American Progress, AILA/NAIJ/AFGE, Detention Watch Network, Interfaith Immigration Coalition, California Attorney General.