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Covid-19 and the changing U.S. immigration scene
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</h3><h4><i>by <a href=”http://discuss.ilw.com/articles/articles/393497-article-covid-19-and-the-changing-u-s-immigration-scene-by-jan-h-brown#bio”>
<span itemprop=”author” itemscope itemtype=”http://schema.org/Person”>
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Jan H. Brown
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<p align=”center”>
<strong>INTRODUCTION</strong>
</p>
<p>
Due to the rapidly surging Coronovirus cases in New York State and
nationally, U.S. immigration has been altering its policies on an almost
daily basis. This article will discuss the legal and administrative edicts
and their real-world consequences.
</p>
<p align=”center”>
<strong>THE PRESIDENT’S PROCLAMATION</strong>
</p>
<p>
On Friday, January 31st, President Trump signed a proclamation suspending
entry into the United States of aliens who were physically present in the
People’s Republic of China, excluding the Special Administrative Regions of
Hong Kong and Macau, within the 14 days preceding entry or attempted entry
into the United States. The proclamation took effect Sunday, February
2nd. This action followed the declaration of a public health emergency in
the United States related to the novel coronavirus outbreak in Wuhan,
China.
</p>
<p>
On Saturday, February 29th, President Trump signed a second proclamation
suspending entry into the United States of aliens who were physically
present in Iran within the 14 days preceding entry or attempted entry into
the United States. This proclamation took effect as of Monday, March 2nd.
</p>
<p>
On Thursday, March 11th, President Trump signed a third proclamation
suspending entry into the United States of aliens who were physically
present in any of the 26 countries that make up the Schengen Area within
the 14 days preceding their entry or attempted entry into the United
States. The Schengen Area consists of Austria, Belgium, Czech Republic,
Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland,
Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands,
Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and
Switzerland. This proclamation is in effect as of 11:59 p.m., March 13,
2020.
</p>
<p>
On March 14th, President Trump signed a fourth proclamation that restricts
travel to the United States of foreign nationals who were physically
present in the United Kingdom and Ireland within the 14 days preceding
their entry or attempted entry into the United States. This proclamation is
in effect as of 11:59 p.m. eastern daylight time on March 16, 2020.
</p>
<p align=”center”>
<strong>USCIS ADMINISTRATIVE CHANGES</strong>
</p>
<p>
As of March 20, 2020, U.S. Citizenship and Immigration Services will no
longer be accepting premium processing applications for employment related
non-immigrant and immigrant petitions.
</p>
<p>
This temporary suspension includes petitions filed for the following
categories:
</p>
<p>
I-129: E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2,
P-2S, P-3, P-3S, Q-1, R-1, TN-1 and TN-2.
</p>
<p>
I-140: EB-1, EB-2 and EB-3.
</p>
<p>
Premium processing is used extensively by employer-petitioners to obtain a
response from USCIS within 15 calendar days of a filing. As most employers
are interested in being able to lawfully employ a foreign worker promptly,
this is quite problematic. Even though business workplaces are currently
shuttered. Therefore, in many cases sponsored foreign workers will not be
able to work remotely or at all in support of their new employers. Workers
and employers will be in limbo.
</p>
<p>
As of March 18th, U.S. Citizenship and Immigration Services has suspended
routine in-person services until at least April 1st to help slow the spread
of Coronavirus Disease 2019 (COVID-19). USCIS staff will continue to
perform duties that do not involve contact with the public. Thus, persons
who have scheduled appointments to be interviewed for permanent residence
through employment or family sponsorship are having their cases delayed for
the duration of the crisis. As we still do not know how long this
suspension will run, we cannot remotely predict how long a delay there will
be post-crisis before all of these cases can be rescheduled and
adjudicated. Before this happened, delays were approximately under a year.
Going forward, one can anticipate much longer delays.
</p>
<p>
There are certain non-immigrant statuses that are more vulnerable than
others to the disruptions caused by the coronavirus crisis. For example,
the non-immigrant O-1 category, which includes foreign artists and
performers, requires the foreign applicant to follow a detailed itinerary
for the length of the status. USCIS adjudicators reviewing pending
applications have been checking internet websites to ascertain whether
upcoming events have been canceled; so doing raises the issue that an
application might not be approvable. Additionally, persons with approved
O-1 status may be vulnerable to a future finding that they have violated
their status if their itineraries have been cancelled during this ongoing
COVID-19 disruption.
</p>
<p>
Under the Trump administration, USCIS has been hostile to all
employment-based immigrant and non-immigrant applications; this crisis may
very well be another quiver in its bow to deny or revoke status. As this
situation is still novel and fluid and will be subject to future
litigation, practitioners should be cognizant of this incipient problem.
</p>
<p align=”center”>
<strong>PUBLIC CHARGE PROVISIONS</strong>
</p>
<p align=”center”>
<strong></strong>
</p>
<p>
Under current U.S. immigration law, 8 U.S.C. sec. 1182 allows the Attorney
General, under whose authority lies the U.S. immigration system, the
authority to deny an immigration or non-immigrant benefit to a person
deemed to be likely to become a public charge. A person’s health and
financial resources are among the criteria that may be considered. In
consideration of the current pandemic, USCIS has issued the following
statement:
</p>
<p>
“
<em>
To address the possibility that some aliens impacted by COVID-19 may be
hesitant to seek necessary medical treatment or preventive services,
USCIS will neither consider testing, treatment, nor preventative care
(including vaccines, if a vaccine becomes available) related to
COVID-19 as part of a public charge inadmissibility 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,
as defined in the rule (e.g. federally funded Medicaid).”
</em>
</p>
<p>
<em>
“The rule requires USCIS to consider the receipt of certain cash and
non-cash public benefits, including those that may be used to obtain
testing or treatment for COVID-19 in a public charge inadmissibility
determination, and for purposes of a public benefit condition
applicable to certain nonimmigrants seeking an extension of stay or
change of status. The list of public benefits considered for this
purpose includes most forms of federally funded Medicaid (for those
over 21), but does not include CHIP, or State, local, or tribal public
health care services/assistance that are not funded by federal
Medicaid. In addition, if an alien subject to the public charge ground
of inadmissibility lives and works in a jurisdiction where disease
prevention methods such as social distancing or quarantine are in
place, or where the alien’s employer, school, or university voluntarily
shuts down operations to prevent the spread of COVID-19, the alien may
submit a statement with his or her application for adjustment of status
to explain how such methods or policies have affected the alien as
relevant to the factors USCIS must consider in a public charge
inadmissibility determination. For example, if the alien is prevented
from working or attending school, and must rely on public benefits for
the duration of the COVID-19 outbreak and recovery phase, the alien can
provide an explanation and relevant supporting documentation.
<strong>
To the extent relevant and credible, USCIS will take all such
evidence into consideration in the totality of the alien’s
circumstances.”
</strong>
</em>
<strong></strong>
</p>
<p>
While the gist of this pronouncement is an applaudable encouragement to
persons to seek medical attention, from an immigration attorney’s
perspective, this last sentence is concerning. Unfortunately, this will
give a USCIS adjudicator yet another opportunity to deny a benefit, if they
were so inclined.
</p>
<p>
<strong></strong>
</p>
<p align=”center”>
<strong>TRAVEL BANS</strong>
</p>
<p>
Many, if not most nations have now imposed bans on incoming international
travel from the United States. It is outside the scope of this lecture to
detail these bans. However, accepting this fact, there are foreigners in
the U.S. whose non-immigrant statuses are expiring. By law, they are
required to depart from the U.S. in a timely fashion or be subject to
consequences such as an inability to easily return to the U.S. in the
future. B-1/B-2 visitor for work or pleasure visas are, as a matter of law,
deemed invalidated if a person overstays a period of an authorized visit.
Such a person would have to reapply for a new visa that would be subject to
the decision of a consular officer as to whether it would be issued.
</p>
<p>
As a matter of law, persons in visa waiver status, called ESTA ( <em>Electronic System for Travel Authorization) </em>will have their right
to travel without applying for a visa revoked if they fail to depart the
U.S. within 90 days of entry. They would then have to apply for a visa
overseas in order to be able to reenter the U.S. This would create a huge
backlog of visa applications at overseas U.S. consular offices, which are
currently closed, when the reopen.
</p>
<p align=”center”>
<strong>CONCLUSION</strong>
</p>
<p>
The practice of immigration law has been extremely challenging under the
Trump administration. Now, the coronavirus pandemic is causing massive
global, personal, and economic disruptions; it is also having a profoundly
negative impact on the orderly administration of U.S. immigration laws and
procedures. Post pandemic, practitioners will have to be even more diligent
in representing the best interests of their immigration clients as the
environment as USCIS will be even more chaotic than before.
</p>
<hr/><h4>
<a name=”bio”></a>
About The Author<br/>
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<p>
<b>Mr. Brown</b> is the Co-Chair of the New York State Bar Association International Section and the former Chair of the American Immigration Lawyers Association – New York Chapter. He has been in practice since 1979, and has written and spoken extensively on the subject of U.S. immigration laws and procedures.</a>
</p>
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