Immigration in the age of the coronavirus

A man exits the transit area after clearing immigration and customs on arrival at Dulles International Airport in Dulles, Virginia, U.S., September 24, 2017. REUTERS/James Lawler Duggan/Files

NEW YORK – As courts shut down operations across the country in the wake of the coronavirus outbreak; even violent felony cases up for hearing might be dismissed because of procedure, the American Civil Liberties Union (ACLU) has sued the Immigration and Customs Enforcement to release illegal immigrants who are “particularly vulnerable” to the ravages of the virus.

“Immigrant detention centers are institutions that uniquely heighten the danger of disease transmission. In normal circumstances, ICE has proven time and again that it is unable to protect the health and safety of detained people,” Eunice Cho, senior staff attorney at the ACLU’s National Prison Project, said in a statement Monday.

The National Review reported the ACLU lawsuit lists 9 people being held at the Tacoma Northwest Detention Center, located just outside Seattle, with Washington being a hotspot for the coronavirus outbreak. The ACLU warns that another 50 to 100 people could also be at high risk in the detention center.

“These are not normal circumstances, and the heightened risk of serious harm to people in detention from COVID-19 is clear,” the statement adds. “Public health experts have warned that failing to reduce the number of people detained — and in particular, failing to release those particularly vulnerable to the disease — endangers the lives of everyone in the detention facility, including staff, and the broader community.”

In the age of the coronavirus, where some industries are getting devastated, take for example, aviation, while others are thriving – online groceries come to mind, in matters of immigration too, there are positive and negative consequences for some immigrants.

While illegal immigrants being supported by ACLU, and others in detention might get an immediate reprieve in the wake of the coronavirus outbreak, some legal immigrants might have more of a complex hurdle to overcome to secure their rights.

The New York Post reported that a new rule that disqualifies immigrants who use government benefits from getting green cards will not apply to people who seek testing or care for the new coronavirus, but if they use other benefits would still have to show documentation later.

US Citizenship and Immigration Services said late Friday seeking treatment or preventive services won’t affect someone’s immigration status under the ‘Public Charge’ rule, which took effect last month after the Supreme Court gave it the go-ahead.

The immigration agency acknowledged some immigrants may be afraid to seek care even if they have symptoms of the deadly virus. It said it “will neither consider testing, treatment, nor preventative care” related to the virus in determining someone’s eligibility for permanent residency.

Immigrants who can’t work or attend school and must use public benefits during the virus outbreak and recovery will be given a chance to explain and provide documentation later, Citizenship and Immigration Services said.

The announcement came after lawmakers and advocacy groups urged the government to suspend the rule during the coronavirus outbreak, reported the Post. Advocates say they have been fielding panicked calls from immigrants who are worried about the impact on their status if they seek health care.

The biggest headache is likely for legal immigrants on visas, though, especially those on H-1B via and the F-1 student visa.

Stuart Anderson, the executive director of the National Foundation for American Policy, a non-partisan public policy research organization focusing on trade, immigration and related issues based in Arlington, Virginia, writing in Forbes, pointed out that the coronavirus raises a host of difficult immigration issues for US businesses, including the status of H-1B visa holders and international students, obtaining I-9 verification for new employees and travel restrictions that limit mobility for international personnel.

“Employees are in a jam. Many employers now prohibit domestic and international travel, and the U.S. government itself is discouraging travel to certain countries,” said Lynden Melmed, a partner at Berry Appleman & Leiden (BAL) and former chief counsel for USCIS, in an interview to Forbes. “But the employees violate immigration laws if they stay put after an H-1B petition is denied. U.S. Citizenship and Immigration Services (USCIS) could fix this by instructing officers not to deny cases for workers in the U.S. unless there are serious violations of law. USCIS could also make it easier for companies to reapply without forcing the employee to leave the United States.”

BAL has recommended, if an employee becomes out of status, to consider refiling the H-1B petition and asking USCIS to excuse the failure to maintain status based on COVID-19 preventing the employee from departing the country. BAL notes, “A request will be stronger if the company can document that the employee would have been required to travel to a country where COVID-19 is widespread or if the individual or family members are at a greater health risk.”

Since working from home has become the new normal, some employers may be uncertain how switching to remote work may affect the status of an H-1B or L-1 visa holder, pointed out Anderson.

“For an H-1B employee, an amended petition or LCA [labor condition application] should not be required as long as the employee is working in the same capacity and within typical commuting distance of the work location on the original petition and LCA,” according to William Stock of Klasko Immigration Law Partners, talking to Forbes. “For L-1s, as long as they are temporarily working from home, in virtually the same capacity, an amended petition is not required.” L-1 visa holders denied an extension face similar dilemmas about leaving the United States as H-1B visa holders.

For H-1B visa holders who have ‘maxed out’ six years on a visa, “a possible solution is a period of voluntary departure for 30 days for all employees whose nonimmigrant status is expiring within that time, similar to what has been done for the Electronic System for Travel Authorization, under which it is called ‘satisfactory departure’ and is limited to 30 days,” said Stock. “Persons with voluntary departure would not have employment authorization (unless separately granted in individual cases), but they would remain lawfully present in the United States for the period granted. USCIS would be protecting people from the future consequences, such as visa ineligibility, of what would otherwise be unlawful presence in the United States.”

The situation is vexatious too for international students.

“It is important that F and M students maintain their nonimmigrant student status, even during emergency events,” ICE said in a recent statement.

ICE directed students to “work with employers to maintain practical training agreements.” The statement added, “Changes to workplace requirements may impact nonimmigrant students engaging in practical training. SEVP [Student and Exchange Visitor Program] encourages such students to consult with their employer to seek alternative ways to maintain training agreements, such as teleworking or other arrangements.”

For universities and international students, ICE said in a March 9, 2020, message it intended to be flexible during the current academic year: “SEVP recognizes that the COVID-19 crisis is fluid and rapidly changing. For that reason, SEVP is not requiring prior notice of procedural adaptations, leaving room for schools to comply with state or local health emergency declarations. However . . . SEVP must be notified of procedural adaptations within ten business days of the change. This guidance applies to students who are currently enrolled in a program of study and is not intended for new or initial students who are outside the United States.”

Compounding the problem is the travel ban in place as countries go into a lockdown. The consulate offices of the US in many countries, including in India, temporarily shut down shop, on March 16. Nobody knows when it would reopen.

The situation would become more of a nightmare if the US were to shut its borders to all travelers like some countries have done.

In the age of the coronavirus, expect the unexpected.

(Sujeet Rajan is Executive Editor, Parikh Worldwide Media. Email him: Follow him on Twitter @SujeetRajan1)



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