Immigration and Coronavirus Update

Monday night, President Trump tweeted that he was suspending all immigration. The next day, he said the government will only suspend the issuance of green cards, for sixty days, and then revisit the matter. Today the President published a Proclamation, halting permanent immigration for 60 days for most persons outside the country.

The Proclamation is entitled, “Proclamation Suspending Entry of Immigrants Who Present Risk To The U.S. Labor Market During The Economic Recovery Following The COVID-19 Outbreak.” The Proclamation begins with a preamble declaring the need to limit immigration to better enable U.S. workers to find employment.

The 60 days suspension applies to those outside the United States presently, and not persons already here, including adjustment of status applicants. Persons who do not have an immigrant visa as of today or any other valid travel document will be impacted.

There are several exceptions. These include lawful permanent residents. Physicians, nurses, health care professionals, COVID-19 researchers, essential workers for fighting COVID-19, and national interest aliens are excepted, as are their spouses and unmarried children under 21. EB-5 visa applicants are exempted.

Family based exceptions are made for spouses of U.S. citizens, children under 21 of U.S. citizens, and prospective adoptions. Parents are not exempted. Additional exemptions are made for military, law enforcement related applicants, and special immigrants. Persons are still allowed to request asylum and other humanitarian relief.

Ominously, within 30 days, the Department of Labor, Department of Homeland Security and Department of State are instructed to consult with the White House on limiting measures for nonimmigrant applicants. I think this is the provision businesses really need to be alert too, as it portends future restrictions on temporary business visas and perhaps the labor certification process. After Monday’s tweet, the Administration immediately received extreme push-back from the business community, which is probably why nonimmigrant restrictions were not immediately included here.

As we and our clients know quite well, immigrants and noncitizens fill essential roles for U.S. employers, throughout the economy. More than 20 percent of U.S. physicians are international medical graduates. For decades, the Department of Labor has recognized a national shortage of professional nurses and physical therapists, allowing them to bypass the typical labor market test for U.S. workers. The information technology sector relies on the expertise of noncitizens in a broad range of IT professions. The food, agriculture, and tourism industries are all reliant on noncitizen workers.

What does this Proclamation mean for people, businesses and families individually? In the short term, probably not that much for petitions already in process, because of existing closures, but each situation is different. U.S. Consulates abroad were already closed for routine visa processing. USCIS Field Offices are also closed for interviews and other green card related processes. The border has been closed, except to essential workers.

As with all things right now, the lines will be getting longer, for whenever things open up again. Everyone’s waiting for an appointment. Some applications are sitting. It continues to be important to keep moving forward with applications as much as possible. 

Now is the time to push forward all the more quickly with an application, to fix a priority date (place in the line), or to otherwise secure an immigration benefit ahead of any future changes. For those with applications in the queue already, it is best to file renewals for employment authorization documents six months before current expiration dates. Naturalization applications will likely get really backed up, with interviews scheduled between a year and two years after filing, and so now is a good time to submit these applications.

There are sometimes ways to address emergency immigration needs. The Proclamation and other restrictions allow for essential worker and national interest exceptions. We are available to consult on difficult situations.

More restrictions are likely to follow, but expect to see lawsuits. There will be an election in November, which will tell the tale the next four years. Much hangs in the balance with this election, for those concerned about immigration, in all its complexity and types.

Now, if that isn’t enough, here is some more immigration news from this week:

  • The U.S.-Canada border closure was extended another 30 days, until May 21st.  Essential workers, such as health care workers, can continue to cross. The NEXUS lanes continue to be closed. Going north, there are vehicle inspections on both sides, and then another stop on the Canada side to provide information on quarantine in Canada. Coming south, the process is reported to be relatively normal. There are also reports that the Canadian government is sending police to do quarantine checks at the homes of Canadian commuters. Canada has a 14-day quarantine rule, which restarts with every entry, but the commuters are allowed to depart each time for work in the U.S.
  • The land border closure is similarly extended to the southern border with Mexico, through at least May 20th. The Center for Disease Control published notice regarding both borders at 85 FR 22424 on April 22nd, 2020.
  • U.S. Customs and Border Protection (CBP) states that the e-SAFE website has been updated and the agency will not be processing waivers until at least May 21st.  The Admissibility Review Office processes nonimmigrant waivers (I-192s) and consents to reapply for admission (I-212s), among other applications. The Ports of Entry continue to hold authority to grant humanitarian parole in exigent circumstances, but such applications need to be handled with care.
  • CBP extended the closure of its Trusted Traveler Enrollment Centers until June 1st.
  • CBP will permit persons here on the 90-day Visa Waiver Program to apply for 30-day extensions for “satisfactory departure”.  This can be done via the USCIS Contact Center, through CBP Deferred Inspection, or a Port of Entry. We strongly suggest scheduling a consultation with us before making such an application for satisfactory departure. We have seen persons run into serious trouble when seeking assistance from the local port of entries directly. The agencies can scrutinize activities taking place in the U.S. pursuant to the Visa Waiver program, and not only deny the temporary extension, but also deny admission and cancel ESTA eligibility.
  • Predictably, we’re seeing strange Requests for Evidence and other irregularities with agency processing right now. We understand many government employees are working from home, and are facing the same challenges everyone else is, but on the application processing side of things. This is yet another reason to process matters as early as possible.
  • Up until the announcement regarding the cessation of green card issuance, some green card interviews were being cancelled and cards issued.
  • Layoffs of H-1B workers are presenting legal questions for employees and employers alike, as to legal rights and responsibilities. Employers need to be careful in this area, as the labor condition application which is certified to the Department of Labor makes attestations about continuing obligations to compensate the noncitizen. There are certain exemptions, but each case is fact specific. 
  • Further, for those employers considering or processing labor certification applications, layoffs are a question that is specifically addressed on the ETA-9089 and needs to be accounted for when recruiting for a minimally qualified, available and willing U.S. worker, before petitioning for a foreign worker. This too is a complicated matter, as an employer can be going through layoffs as a company, but not being experiencing layoffs in the relative occupation.
  • COVID-19 continues to present many issues for ICE detentions. The safety of detainees continues to be a concern. Attorney access has been an issue. Reports are also that ICE is deporting detainees more expeditiously, some of whom have COVID-19. 
  • The Supreme Court’s decision on DACA could be published any day now. Based on oral argument, there is an expectation that the Court will side with the Government’s cancellation of the program. Advocacy for Dreamers will continue. There are many stories of Dreamers who are on the front lines of this public health crisis right now.