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Immigration Closures and Emergency Changes During COVID-19

The past couple of months have seen a wave of immigration changes and restrictions due to the COVID-19 (coronavirus) outbreak. We previously reported on the travel ban on Chinese nationals that took effect on January 31, 2020, which is still in effect.  A similar ban was imposed on Iranian nationals on February 29th, and on Ireland and any European country in the Schengen zone in mid-March.   These bans prohibit travel to the U.S. not just for nationals of those countries, but for any foreigners who traveled to any of those countries during the 14-day period immediately preceding seeking admission to the U.S.

But this was just the beginning.  The week of March 16, 2020 brought by far the most sweeping wave of immigration services closures and changes, as the fight against COVID-19 continues.  The immigration community has been receiving a barrage of updates daily, multiple times a day, from roughly 8-10 government agencies or divisions that are in charge of implementing U.S. immigration law.

This article compiles some of these changes and answers some of the most common questions our office has received, based on the information that is in effect as of the date of this posting.  

I have an application pending with USCIS. Is my application still being processed?

As of the date of the article, USCIS is still accepting and processing all applications for immigration benefits, including applications for naturalization, permanent residence (green card), extensions of status and change of status requests, etc. The H-1B registration period proceeded as planned as well, and employers were able to submit their registrations until noon E.T. on March 20th

However, on March 18, 2020, USCIS closed all offices to the public and announced it will cancel all interviews through at least April 1st.  Therefore, no interviews or biometric appointments are being scheduled until further notice, except in cases of emergency for limited situations.  As a result, the adjudication of many immigration applications will be delayed, unless USCIS waives the requirement of an in-person interview on a case-by-case basis.  Naturalization oath ceremonies have also been cancelled for the time being.

In addition, on March 20, 2020, USCIS suspended premium processing for all I-129 and I-140 petitions seeking employment-based immigration benefits.  Premium processing is no longer available for temporary visa classifications for E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-3, P-3S, Q-1, R-1, TN-1 and TN-2, until further notice.  Premium processing is also no longer available for employment-based permanent residence preference categories EB-1, EB-2 and EB-3.

What if I cannot meet with my attorney to provide an original signature because of social distancing rules related to COVID-19?

On March 20, 2020, USCIS announced flexibility in signature requirements, stating that for the duration of this National Emergency, it would accept photocopied/scanned signatures for all immigration benefit application forms, including those that normally would require an original signature.

Can I still get a visa to the U.S.?

As of the date of this article, applicants may still submit visa applications through the Department of State’s online application center, but all routine visa interviews (both for immigrant and non-immigrant/temporary visas) are suspended, except for emergency situations.  On March 16, 2020, U.S. Consulates in India suspended all routine visa services until further notice.  The U.S. Consulates in Mexico suspended all routine visa services on March 18th, until further notice.  Finally, on March 20th, the U.S. Department of State suspended all routine visa services at all U.S. Consulates all over the world.

Individuals already in possession of valid visas may continue to travel to the U.S., subject to the travel bans already in place for China, Iran, Schengen zone countries, Ireland, etc.

Can I travel to the U.S. on ESTA?

Individuals from a Visa Waiver Program (VWP) may still travel on ESTA, but all travel is subject to the travel bans in place for individuals who have been to China, Iran, Schengen zone countries, Ireland, etc. during the 14 days immediately preceding their travel to the U.S.

In addition, as of March 17th, all travelers not subject to the travel bans (U.S. citizens, permanent residents, diplomats, among others), coming to the U.S. from a country subject to the ban may only be routed to the U.S. through certain designated airports where they may be screened for COVID-19 symptoms.

Can I travel to Mexico or Canada?

Effective March 21, 2020, the U.S. also restricted travel to/from Canada and Mexico through the respective land borders, after discussion and agreement with both countries.  Under these cooperation agreements, non-essential travel between the countries is not allowed.  “Non-essential” travel includes tourism and recreational travel, at least for the time being.  These restrictions are initially in place for 30 days, to be reassessed and extended for additional time, as needed.

What if my status expires and it is not safe to return to my country because of COVID-19?

All foreign nationals present in the U.S. must continue to maintain their immigration status and comply with the terms and conditions of their visas and admission to the U.S.  Unless an express exemption applies, individuals should either depart or file applications for extension of status before their authorized stay expires, in order to avoid falling out of status.

Individuals present in the U.S. based on a valid visa may be able to apply for extension or, in some cases, change of status.  However, no extension or change of status applications are available for individuals present in the U.S. on ESTA, although they may get special permission from the U.S. government to defer their departure for up to 30 days.

Does the new public charge rule prohibit me from getting medical treatment related to COVID-19?

On March 13, 2020, USCIS clarified that the new public charge rule will not be applied in relation to any treatment or preventative measures related to COVID-19, and use of any such services would not negatively impact an applicant’s eligibility for permanent residence for purposes of the public charge analysis.

Can I still apply for Trusted Traveler Program, Global Entry, NEXUC, SENTRI or FAST

On March 18, 2020, the U.S. Customs and Border Protection (CBP) suspended operations at Trusted Traveler Program enrollment centers, including Global Entry, NEXUC, SENTRI and FAST.  Conditionally-approved Global Entry applicants need to reschedule their final processing appointment to a future date.

Our company is hiring new workers but we are working remotely. How do we complete Form I-9?

On March 20, 2020, the Immigration and Customs Enforcement (ICE) provided I-9 guidelines for remote workforces  due to COVID-19.  Under these guidelines, some employers may perform part of the I-9 Employment Eligibility Verification process via video conferencing, then follow up with in-person verification after normal operations resume.

For employers enrolled in E-Verify, all general rules still apply but the Department of Homeland Security is extending the time frame to resolve Tentative Non-confirmations (TNCs) if the employee is unable to access the Social Security administration offices or a DHS office due to public closures caused by COVID-19.

I am in removal/deportation proceedings. What happens to my case?

On March 20, 2020, the Executive Office for Immigration Review (EOIR) announced that all Immigration Courts are canceling all hearings until April 10th for non-detained individuals (the date may be subject to change, as needed).  Hearings for individuals who are in ICE detention are still being conducted, except for certain Immigration Courts that have closed completely.  A list of all Immigration Courts and their operations in light of COVID-19 can be found here.

For the hearings that are still being conducted, Immigration Courts in several states have relaxed procedures for attorneys to appear telephonically, and the possibility of waiving the appearance of the respondent, in order to respect and promote social distancing rules and to avoid the courts becoming overly-crowded.

What about ICE – are they continuing their enforcement operations?

The Immigration and Customs Enforcement (ICE), reports that it is changing its enforcement priorities to focus on individuals who are subject to mandatory detention due to criminal convictions.  In addition, ICE offices throughout the country may suspend check-ins or readjust the process for individuals who are under orders of supervision; all affected individuals should check with their local office to ascertain proper procedure to be followed.

ICE also indicated that it would not engage in any enforcement operations near hospitals or other medical facilities, except for special circumstances, and encouraged all foreign nationals, whether documented or not, to seek medical attention as needed in relation to COVID-19.

These changes are not exclusive, or final.  New guidelines will continue to emerge as the pandemic runs its course.  We will continue to monitor these developments and will provide periodic updates.  If you have any immigration-related questions in general, or specific to the state of U.S. immigration during the coronavirus outbreak, please contact Attorney Raluca (Luca) Vais-Ottosen at rvo@dewittllp.com or 608-252-9291. 

About the Author

Raluca Vais-Ottosen has assisted numerous clients with Immigration matters ranging from family-based and individual Immigration applications, to employment related visas and I-9 employment eligibility verification issues. In addition to her Immigration practice, she also has an extensive background in Employment Law. She assists companies in a number of areas, including but not limited to claims of workplace discrimination, harassment and retaliation, termination and constructive discharge, workplace investigations by State and Federal agencies, as well as Employment Litigation.

Contact Luca by email or by phone at (608) 252-9291.

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