In the dark days following 9/11, there was speculation, especially at the Department of Justice, that immigration might be impacted as a result of the terrorist attacks on our country. However, folks seeking to immigrate for various reasons kept coming. The Department of Homeland Security was born in the aftermath of the attacks and legacy Immigration and Nationality Service (“INS”) was put to rest. The agency was split into several bureaus, separating immigration benefit services from enforcement and removal operations. The following months brought about changes in immigration laws, including a required registration period for nationals of certain Islamic and more recently “bans” on citizens of certain nations deemed to be a threat to national security, from entering the country.
Similarly, the Covid-19 Pandemic has brought about recent changes in immigration laws and policies. On April 23, the President issued a proclamation specifically addressing those changes to clarify some of the confusion and misinformation that was previously disseminated. It pertains to anyone seeking to enter the country as an immigrant who does not have a valid immigrant visa or official travel document.
Those exempted include; lawful permanent residents (green card holders), individuals seeking a special immigrant visa to perform medical research or work, such as healthcare workers or law enforcement personnel, individuals applying for a visa under the EB-5, or immigrant investor visa program, spouses or children of United States citizens, and individuals whose entry would be classified as “national interest” as determined by the Secretaries of State or DHS.
It is important to note that the President’s proclamation does not preclude individuals who are present in the country from applying for asylum, refugee status, lawful permanent residence, or naturalization. These petitions are still viable, however, although the applications are being processed, no interviews are being scheduled at this time. The travel restrictions imposed do not pertain to green card holders but currently do affect those who have been present in most countries in Europe, China, and Iran.
Presently, all U.S. consulates abroad have canceled routine immigrant and nonimmigrant visa appointments. The consulates have declared they will resume routine visa services as soon as possible but are unable to provide a specific date at this time due to the uncertainty of the Pandemic. Some have provided target dates for when they hope to reopen but this is country specific and subject to change. Most consulate websites claim they are open for emergency appointments, but these seem to be reserved mostly for U.S. citizens dealing with lost or expired passports abroad. The Department of State has not yet defined what constitutes an emergency (assuming emergency appointments are available to non-U.S. citizens) most likely this would include the severe illness or death of a family member.
The plight of foreign employees in specialty occupations, or H1-B employees, who have been laid off because of Covid-19 is another volatile area. Many in this situation are in a difficult predicament and might consider filing for a change of status to B1/B2, visitor’s visa.
Another issue is whether non-U.S. citizens may apply for unemployment benefits. Currently, the receipt of unemployment benefits is not considered by USCIS in a “public charge” determination. However, when seeking lawful permanent residence, being “unemployed” will still be considered under the totality of the circumstances analysis and may affect a public charge determination.
Visitors in the country under the Electronic System for Travel Authorization (ESTA) or Visa Waiver Program are given a finite number of days they may remain in the United States without having to obtain a visitor’s visas and this specific date is reflected in their I-94 form. Due to the Pandemic, people under these programs are able to contact the Customs and Border Patrol Office nearest them and request “Satisfactory Departure” which is basically permission to stay in the country for an additional 30 days beyond their I-94 date.
Having worked in the field of immigration through four different White House administrations it is easy to see how immigration policies change, shifting from left to right, depending on the politics of the administration at the time. Currently, with Covid-19 in the mix, it remains to be seen how policies being imposed during the Pandemic will be implemented in 2021 and the years beyond. As for this great nation of immigrants, we remain a mecca, a beacon of shining hope for those seeking a better life and we hope it will always remain that way.
Frieda Montanti Goldstein, is a former U.S. Immigration Prosecutor. She is the managing partner for the NY office her firm located in mid-town Manhattan.
