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Impact of COVID-19 on Immigration

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. Meanwhile, an executive order has placed a freeze on most but not all green card applications for 60 days, starting at 11:59 P.M. on April 23, 2020. The order is expected to block about 50,000 green cards during this period. However, it does not affect applications for non-immigrant visas, nor does it affect current green card holders.

Certain categories of foreign nationals are exempt from the executive order. Foreign nationals who still may apply for green cards include the spouses and children of U.S. citizens, as well as members of the U.S. armed forces and their spouses and children. (For the purposes of this order, a child is defined as an unmarried person under the age of 21.) Health care professionals and people who are entering the U.S. to help fight the coronavirus pandemic also are exempt, together with their spouses and children. A special exemption covers Afghan and Iraqi nationals and their spouses and children if they are applying for certain types of visas based on their work for the U.S. government. Other exemptions cover foreign nationals who are seeking an investor visa or who are entering the U.S. for law enforcement or national security purposes.

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

As noted above, foreign nationals with non-immigrant visas are not affected by the 60-day freeze. However, they may be affected by restrictions that the U.S. has imposed on travel from certain countries that are linked to high COVID-19 rates. A series of presidential proclamations has blocked most travel from China, Iran, the United Kingdom, Ireland, 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. Foreign nationals who are exempt from these restrictions include returning green card holders 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. This temporary rule change allows an H-2A sponsor with a valid temporary labor certification to employ certain current H-2A visa holders, replacing prospective H-2A workers who are unable to enter the U.S. due to travel restrictions. H-2A visa holders also are temporarily allowed to stay in the U.S. beyond the standard three-year limit.

Certain specific concerns may affect H-1B visa holders and their employers. You can read more here about what to consider if you currently hold this status or if you employ H-1B workers.

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 plans to generally refrain from conducting operations at or near health care facilities, which might discourage foreign nationals from seeking medical treatment. 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.

Many immigration courts across the U.S. have been closed due to COVID-19 concerns. Hearings have been postponed through May 29, 2020 for all foreign nationals in the U.S. except those in immigration detention. Hearings for foreign nationals who are waiting in Mexico under the Migrant Protection Protocols (MPP, or the “remain in Mexico” policy) have been postponed through June 1, 2020. Further, U.S. Citizenship and Immigration Services (USCIS) offices are generally closed to the public for in-person services through at least June 4, 2020, which is causing delays for many applications, interviews, and other processes.

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