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Dear Sophie:
There’s a lot of misinformation going around the internet on immigration right now. Can you provide a clear explanation of how immigration policies are shifting in response to COVID-19?
— Overwhelmed in Palo Alto
Dear Overwhelmed,
Thank you for asking! I see so many people communicating from places of fear or anxiety right now, which is understandable, but sometimes those emotions can surface sensationalized versions of the truth. I appreciate the opportunity to clear things up.
COVID-19 is having a broad impact on many American policies, including immigration. And while policies are shifting in response to the pandemic, it’s important to stay realistic — what we’re dealing with right now is a temporary situation, not a permanent one. The changes USCIS has made are designed to protect everyone’s health and are likely to shift as the situation changes.
If you’re an immigrant in America or someone looking forward to immigrating here, I encourage you to keep your goals in sight. To do that, you need to stay informed. That said, here are the latest changes to the processing and renewal of visas, green cards and other immigration benefits brought on by the COVID-19 crisis.
Oh — and you also need to take good care of yourself! I hope you find this information helpful. Please consult with an immigration attorney to discuss these or any other immigration matters you’d like to know more about. Thanks again!
I-9 inspections starting employment
If you’re starting any new employees right now, you can breathe a sigh of relief because DHS announced new flexibility last week for Form I-9 compliance. It is deferring the physical presence requirement. If your company is working from home for shelter-in-place, you will not be required to review your new hires’ employment authorization documents in each other’s physical presence.
Here’s what you need to do now:
- Review your new hires’ documents virtually, such as by video call or email.
- Within three business days, obtain, inspect and retain copies of the documents to complete I-9 Section 2.
- Provide your policy for remote work and remote onboarding to each employee.
Here’s what you’ll need to do later:
- Once normal operations resume, revisit your I-9s.
- Conduct physical document inspection.
- In Section 2, write “COVID-19” as the reason for the physical inspection delay in the Additional Information section.
- Also in Section 2 or 3 as appropriate, write the date and “documents physically examined.”
You can use these procedures for at least 60 days or within three days of the national emergency ending, whichever happens first. Check with ICE for additional details on what additional steps you’ll need to take down the road.
Sophie’s podcast, “Immigration Law for Tech Startups,” is available on all major platforms.
Consular processing
The U.S. Department of State announced that U.S. embassies and consulates have stopped processing routine visa and green-card petitions until further notice. Individuals who had interviews scheduled at a U.S. embassy or consulate will receive a cancellation notice by email. Any fees already paid will remain valid for one year of the payment date.
U.S embassies and consulates will provide visa services for emergency or national interest exceptions, but only under certain circumstances and “as resources allow.” The State Department has told the American Immigration Lawyers Association (AILA) that these visas will rarely be approved. Any visas issued on the basis of an exception will list the exception from the travel restrictions currently in place in the U.S. Due to COVID-19 concerns, U.S. immigration officials are currently barring entry to the U.S. to anyone who has been in any of the following countries within the last 14 days:
- China
- Iran
- The Schengen Area of Europe, which encompasses 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
- U.K. and Ireland
U.S. citizens and permanent residents (green card holders) are exempt from this travel restriction.
Processing within the U.S.
U.S. Citizenship and Immigration Services (USCIS) has closed all field offices in the U.S. until at least April 1. The agency will send notices to individuals with green-card interviews, appointments or naturalization ceremonies that are being canceled. USCIS will reschedule those appointments once normal operations resume.
Individuals who scheduled an appointment with an immigration officer on the InfoPass online system will need to reschedule through the USCIS Contact Center when USCIS field offices reopen.
Despite the closure of USCIS offices, the agency will continue to process applications and petitions and perform other duties that do not require public contact, including H-1B petitions subject to the lottery.
All premium processing on hold
First, and unrelated to COVID-19, USCIS announced the temporary suspension of premium processing for H-1B petitions subject to the annual lottery, which closed on March 20. As it has done in previous years due to the volume of candidates participating in the annual H-1B lottery, USCIS suspended premium processing to enable officials to reduce the overall processing time. USCIS expects to resume premium processing for all cases by June 29, 2020.
However, last Friday, USCIS announced that all premium processing would be suspended for all I-129 and all I-140 petitions.
Copies of signatures allowed
Also last week, probably to support the working from home crowd, USCIS announced that it will accept reproduced signatures on all forms, including the I-129. This is the first time since I first got exposure to immigration law through my dad’s practice in the 1990s that I’ve ever seen them make an exception that they must receive wet ink signatures being required on forms.
Federal benefits
The government’s expanded “public charge” rule went into effect on February 24, 2020. The public charge rule enables immigration officials to deny a visa or green card to candidates if they are — or are likely to become — dependent on government benefits. Immigration officials will consider anyone who received a public benefit for more than 12 months within a three-year period — or who may do so in the future — as a “public charge.”
However, USCIS will not count testing, medical treatment, or preventive care for COVID-19 even if it is paid for by using federally funded Medicaid or other public benefits for consideration under public charge grounds of inadmissibility. This means that if you’re ill with COVID-19, go get the assistance you need.
Individuals who are subject to the public charge rule and have been impacted by COVID-19 prevention, such as a quarantine or workplace, school or university closure, should include a statement explaining that along with their visa or green card application.
The coronavirus relief legislation approved last week includes provisions for free COVID-19 testing, paid emergency leave and tax credits for employers. These benefits will not be counted under the public charge rule. Currently, Congress is drafting stimulus legislation aimed at mitigating the economic fallout from COVID-19. It remains unclear exactly what will be included in the final legislation. However, rest assured that the following benefits are exempt from consideration under the public charge rule:
- Workers’ compensation benefits
- Unemployment benefits
- Pell grants
- Student loans
- Tax-related cash benefits
- Benefits received by an individual’s family members
- Emergency medical assistance
- Medicaid received by children, during pregnancy or within 60 days of pregnancy or under the Individuals with Disabilities Education Act
- Health insurance under the Affordable Care Act
- Benefits received by U.S. Armed Forces service members
- Social Security and Medicare
- Benefits from the Children’s Health Insurance Program
- WIC (a supplemental nutrition program for women, infants and children)
- Benefits from the Low Income Home Energy Assistance Program
Special situations
Immigration officials consider COVID-19 a “special situation,” like hurricanes, floods and other natural disasters. If issues stemming from COVID-19 make it difficult or impossible to meet application deadlines, request an extension and the reason for needing an extension.
Visa waiver program
Under the ESTA (Electronic System for Travel Authorization) visa waiver program, citizens of designated countries can travel to the U.S. for business, staying 90 days or less without obtaining a visa. Nearly 40 countries are on the list of designated countries, including many countries on the U.S. travel restriction list.
Due to flight cancellations, individuals who entered the U.S. under ESTA prior to the travel restrictions may find themselves unable to leave the U.S. before their current period of admission is scheduled to end. Currently, only JFK International Airport in New York and Newark Liberty International Airport have established a formal process that allows individuals admitted to the U.S. at those two locations to request a “Satisfactory Departure” from the U.S. for up to 30 days before their ESTA admission will expire.
Normally, a request for Satisfactory Departure must be submitted to USCIS. However, U.S. AILA is working with Customs and Border Patrol to implement a similar process at all U.S. ports of entry.
Immigration enforcement
U.S. Immigration and Customs Enforcement (ICE) announced that its agents will temporarily postpone most arrests and inspections due to the coronavirus pandemic. Instead, agents will only focus on pursuing individuals who pose public safety risks or are subject to mandatory detention based on criminal grounds.
However, it remains uncertain whether ICE will announce when it plans to resume inspections, such as I-9 inspections. All new hires and their employers must continue to fill out USCIS Form I-9, Employment Eligibility Verification. Moreover, employers must continue to keep Form I-9 up-to-date for existing employees. ICE or other federal officers could inspect an employer’s Form I-9 for all of its employees. Employers who receive an I-9 inspection notice should immediately contact their immigration counsel.
These are the most current updates on immigration policy at the time of this writing. Feel free to share this information anywhere it might help clear things up for others. Thanks again for asking this important question!
All my best,
Sophie
Have a question? Ask it here; we reserve the right to edit your submission for clarity and or space. The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer here. You can contact Sophie directly at Alcorn Immigration Law.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms; if you’d like to be a guest, she’s accepting applications!
