Impact of COVID-19 on Immigration Law
During the coronavirus pandemic, the U.S. government has tightened restrictions on immigration in several ways. For example, the northern border with Canada and the southern border with Mexico have been closed to non-essential travel. Under the administration of former President Donald Trump, an executive order placed a freeze on most but not all green card applications until the end of March 2021. The order did not affect current green card holders or people seeking adjustment of status. However, the administration of President Joseph Biden announced on February 24, 2021 that it was revoking the previous order halting most U.S. visas. The administration has not released new guidance in its place, but it has ordered the resumption of visa processing. Previously refused immigrant visa applicants should await instructions from the U.S. embassy or consulate where they were interviewed.
Impact on Current Green Card Holders
Green card holders who are outside the U.S. during the coronavirus emergency may face some obstacles in returning to the U.S. if they have stayed abroad for six months or more. After an absence of 180 days, a foreign national will be treated as someone who is again seeking admission to the U.S. If any grounds of inadmissibility may have arisen during your absence, you should bring documents to overcome these concerns. You also may want to document the reasons why you did not return to the U.S. sooner. If you have been infected with COVID-19, you likely will not be admitted to the U.S.
Even if you have stayed outside the U.S. for slightly less than 180 days, immigration authorities may find that you have abandoned your U.S. residence. To try to avoid this problem, you can bring documents such as tax returns and proof of a home or job in the U.S.
A green card holder who stays outside the U.S. for a year or longer will lose their green card unless they can show that they are returning from a temporary visit. This is a visit that was expected to end once certain things happened, rather than an indefinite absence. A foreign national will need to show that they kept their ties with the U.S. throughout their stay abroad and consistently intended to resume their permanent residency in the U.S. They must have been prevented from returning sooner by circumstances outside their control. Foreign nationals in this situation may want to consult an attorney for more specific guidance.
Impact on Non-Immigrant Visas
An executive order in June 2020 has frozen many types of non-immigrant visas until at least the end of March 2021, such as H-1B visas, L visas, and most J visas and H-2B visas. The freeze on these types of non-immigrant visas will remain in effect under the Biden-Harris Administration until March 31, 2021. The order does not affect current visa holders. Foreign nationals also may be affected by restrictions that the U.S. has imposed on travel from certain countries that are linked to high COVID-19 rates. The Biden-Harris Administration announced its intent to impose and continue travel restrictions due to COVID-19 concerns within China, Iran, the Schengen Area, the United Kingdom, Ireland, Brazil, and South Africa. Foreign nationals who are exempt from these restrictions include returning green card holders, certain relatives of U.S. citizens or lawful permanent residents, and people who are entering the U.S. for law enforcement or national security purposes. Thus, most foreign nationals from these countries will not be able to enter the U.S. with a non-immigrant visa. They may be able to work around this rule if they spend the previous 14 days before entering the U.S. in a country not covered by travel restrictions, and they can provide proof of a 14-day stay there.
On April 15, 2020, the U.S. government altered the visa requirements for foreign workers with H-2A visas. The April temporary final rule, which expired on August 18, 2020, allowed H-2A visa holders to stay in the U.S. beyond the standard three-year limit. It also allowed an H-2A sponsor with a valid temporary labor certification to employ certain current H-2A visa holders after the H-2A petition was received but not before the start date listed on the petition. This new rule allowed sponsors to replace prospective H-2A workers who were unable to enter the U.S. due to travel restrictions. This second alteration was extended on August 20, 2020, as well as an H-2A visa holder’s temporary ability to change employers and begin work before approval of a new H-2A petition. On December 18, 2020, the Department of Homeland Security published a new temporary final rule that again extended these alterations. H-2A petitioners requesting an extension of stay between December 18, 2020 and June 16, 2021 will be evaluated under these new rules.
On December 1, 2020, non-immigrant visa restrictions on specialty occupations, wage requirements, and worksite limitations issued by the Department of Labor and the Department of Homeland Security in October 2020 were struck down. On January 15, 2021, the Department of Homeland Security issued a new final rule that only expanded the definition of who can be considered an employer of an H-1B visa holder.
A January 20, 2021 memorandum asked executive departments and agencies, including the Department of Homeland Security and the Department of Labor, to postpone for 60 days all rules that had been published but had not yet taken effect. These include the Department of Homeland Security’s rule changing H-1B visa wage requirements. Rules that had not yet been published were immediately withdrawn. These include the rule redefining the employer-employee relationship.
Impact on Asylum Seekers
Effective March 20, 2020, a new rule allows Customs and Border Protection (CBP) agents to remove foreign nationals who are seeking asylum in the U.S. without processing their claims. This rule relies on the Public Health Service Act, which gives authority to the head of the Centers of Disease Control and Prevention (CDC) to prevent foreign nationals from entering the U.S. if they may pose a serious danger related to a communicable disease. In contrast to previous policies, children who are not accompanied by parents or guardians also are subject to this rule. As of April, CBP stated that it expels about 80 percent of all migrants encountered at the border within two hours.
CBP agents are not required to ask an asylum seeker whether they will be subject to torture if they are denied entry, and an asylum seeker is not guaranteed admission if they tell a CBP agent that they will be subject to torture if they are sent back. Guidance provided to CBP agents suggests that an asylum seeker will be sent back unless they can persuade a CBP agent and a higher-ranking CBP official that they will be tortured. People who are seeking asylum due to an immutable aspect of their identity, such as their race or religion, are not covered by any exceptions to the rule.
Impact on Immigration Enforcement
On March 18, 2020, Immigration and Customs Enforcement (ICE) announced that it would adjust its enforcement priorities. It generally refrains from conducting operations at or near health care facilities, which might discourage foreign nationals from seeking medical treatment. It also refrains from making arrests at sensitive locations, including schools and places of worship. ICE has said that it also will focus on foreign nationals who are subject to mandatory detention based on criminal activity and who thus pose a public safety risk. In April, ICE began to review foreign nationals in its detention facilities, considering whether certain people at high risk of contracting COVID-19 should be released. These groups include pregnant detainees and detainees who are 60 or older. Hundreds of foreign nationals have been released from detention following these medical reviews. ICE continues to use telephonic and electronic reporting, rather than in-person review, and has temporarily suspended social visitation in its detention facilities, but it encourages video visitation.
Many immigration courts across the U.S. have been closed due to COVID-19 concerns, but some courts have begun to reopen and hearings have resumed. Hearings for foreign nationals who are waiting in Mexico under the Migrant Protection Protocols (MPP, or the “remain in Mexico” policy) had been postponed until February 19, 2021, when the Department of Homeland Security began processing people in MPP in accordance with CDC guidance. Furthermore, U.S. Citizenship and Immigration Services (USCIS) offices were closed to the public for non-emergency in-person services until the early summer (and some remain closed), which is causing delays for many applications, interviews, and other processes.
