By Jorge Loweree, Aaron Reichlin-Melnick and Walter Ewing, Ph.D.
May 27, 2020
Courtesy of the American Immigration Council
The COVID-19 (the novel coronavirus) pandemic, and the federal government’s response, has disrupted virtually every aspect of the U.S. immigration system. Visa processing overseas by the Department of State, as well as the processing of some immigration benefits within the country by U.S. Citizenship and Immigration Services (USCIS), have come to a near standstill. Entry into the United States along the Mexican and Canadian borders, including by asylum seekers, has been severely restricted. Immigration enforcement actions in the interior of the country have been curtailed, although they have not stopped entirely. Tens of thousands of people remain in immigration detention despite the high risk of COVID-19 transmission in crowded jails, prisons, and detention centers that U.S. Immigration and Customs Enforcement (ICE) uses to hold noncitizens. The pandemic led to the suspension of almost all immigration court hearings and limited the functioning of those few courts which remain open.
This report seeks to provide a comprehensive overview of COVID-19-related disruptions throughout the immigration system and identifies recommendations for adjustments and improvements to the federal response. Given that the landscape of immigration policy is changing rapidly in the face of the pandemic, this report will be updated as needed.
The Effect of COVID-19 on Immigrants and Nonimmigrants Abroad
The COVID-19 pandemic profoundly impacted the ability of foreign nationals to travel to the United States in any status. Beginning in February 2020, the Trump administration has imposed four separate travel restrictions on individuals who had been present in certain countries where COVID-19 epidemics were occurring. As the pandemic spread, on March 20, 2020 the Department of State suspended “routine visa services” at all embassies and consulates worldwide, including cancelling all “immigrant and nonimmigrant visa appointments.” This suspension encompasses applicants for both employment-based and family-based immigrant visas, including the relatives of U.S. citizens and lawful permanent residents (LPRs), as well as applicants for nonimmigrant visas for visitors, students, and skilled workers. However, the State Department has continued to process all H-2 visa cases, which includes temporary agricultural workers, and allows for emergency visa appointments.
The pandemic has also led to new barriers on legal immigration. The Trump administration implemented a proclamation, effective April 24, 2020, that suspends the entry of certain immigrants, with the stated purpose of preserving employment opportunities for U.S. citizens affected by the economic impact of the pandemic.
Analysis and Recommendations:
The United States should work to remove the red tape that makes it difficult for many medical professionals to move to the United States and contribute their talents. In addition, the ban on most new immigrants should be terminated, as it is a thinly veiled attempt to implement drastic changes to our system of family-based immigration and not a genuine attempt to help American workers.
The Effect of COVID-19 on Immigration Processing at U.S. Land Borders
On March 20, 2020, the United States reached joint agreements with the governments of Canada and Mexico to suspend “non-essential” travel through ports of entry on each border. On the same day, the Department of Health and Human Services (HHS) issued an emergency regulation which permits the Director of the Centers for Disease Control (CDC) to “prohibit … the introduction” of individuals when the Director believes that “there is serious danger of the introduction of [a communicable] disease into the United States.” Citing the new CDC authority, the Border Patrol began “expelling” individuals who arrive at the U.S.-Mexico border, without giving them the opportunity to seek asylum. Over 20,000 people have since been “expelled” at the southern border.
Analysis and Recommendations:
Suspending all processing of asylum seekers in this manner is likely a violation of international and domestic law. U.S. Customs and Border Protection (CBP) should immediately develop plans to administer appropriate screenings at the border for asylum seekers and unaccompanied children, allowing for the safe processing of all individuals in a way that protects the vulnerable, while preventing the spread of the coronavirus.
The Effect of COVID-19 on Immigration Processing Inside the United States
As of April 24, 2020, USCIS suspended all in-person services at its offices through at least June 4, 2020. As a result, interviews for all immigration benefit applications and asylum applications are postponed and will be rescheduled when normal operations resume. USCIS also “temporarily suspended” all biometrics appointments, meaning that new fingerprints cannot be taken. The agency suspended naturalization oath ceremonies, although a very limited number of small ceremonies have taken place in some jurisdictions. This has unnecessarily delayed the ability of tens of thousands of immigrants to become U.S. citizens. The agency has also made a number of technical changes to the H-2A and H-2B processes which make it easier for noncitizens who are working to keep the nation’s food supply stable to remain in the United States for the duration of the national emergency.
However, the agency has resisted calls to grant automatic status extensions or otherwise make changes which would prevent foreign nationals from inadvertently losing status during the current national emergency declared by the president on March 13, 2020.
Analysis and Recommendations: Despite the extraordinary set of circumstances presented by the pandemic, USCIS has not issued broad policy changes that would enable noncitizens to focus on their well-being rather than their immigration paperwork. USCIS should suspend all filing deadlines and extend all nonimmigrant statuses for at least 90 days beyond the duration of the COVID-19 national emergency. The agency should also administer oath ceremonies online to approved naturalization candidates.
The Effect of COVID-19 on Immigration Enforcement and Detention Inside the United States
The arrival of the coronavirus in the United States posed an immediate threat to detained individuals and individuals working in detention facilities. Unlike people living outside of detention centers, those in detention centers cannot socially distance from others, as they are locked inside facilities with hundreds of other people. People in detention have limited access to soap and often must pay for hand sanitizer. Face masks are difficult to obtain or simply not distributed at all. The risk of the virus spreading to additional ICE detention centers is exacerbated by the agency’s practice of routinely transferring people from one detention center to another, often multiple times. At least three people have died after contracting COVID-19 while detained.
In response to the coronavirus pandemic, ICE limited its enforcement actions throughout the United States. While the agency did not fully suspend arrests, it promised to “temporarily adjust its enforcement posture” beginning on March 18, 2020, by “focus[ing] enforcement on public safety risks and individuals subject to mandatory detention based on criminal grounds.” The effect of ICE’s limited enforcement became quickly apparent, with the agency sending fewer people to ICE detention centers in the weeks after the change in policy.
Analysis and Recommendations: ICE should use its broad authority to parole people and release them on alternatives to detention to the widest extent possible while their immigration court proceedings continue. For those who remain detained, telephonic access to one’s attorneys and family members should be robust. In addition, despite a drop in immigration enforcement inside the United States, ICE has continued to deport people to countries around the world, even though this threatens to further spread the coronavirus. ICE should limit enforcement actions that put communities at heightened risk due to COVID-19 by implementing meaningful enforcement priorities.
The Effect of COVID-19 on the Immigration Court System
As the pandemic spread throughout the United States, the immigration court system responded slowly. It was not until March 16 that the Executive Office for Immigration Review (EOIR) postponed large “master calendar hearings” nationwide. Despite suspending all non-detained immigration court hearings, EOIR has not suspended all other hearings. Hearings continue for all immigrants held in detention, as well as for unaccompanied children held in shelters by the HHS Office of Refugee Resettlement.
Analysis and Recommendations: Requiring detained immigrants and unaccompanied children to gather in close proximity for court hearings risks furthering the spread of COVID-19. EOIR should suspend all in-person immigration court hearings and utilize remote technology until COVID-19 is under control.
Congress’ Response to the Impact of COVID-19 on Immigrants
In response to the economic downturn, Congress passed several stimulus measures intended to provide financial support to individuals, businesses, and governments across the country—while also increasing the availability of medical testing and treatment.
The “Coronavirus Aid, Relief, and Economic Security” Act, or CARES Act, directs the expenditure of approximately $2 trillion in new spending to provide emergency assistance—including direct payments—for individuals, families, and businesses impacted by the COVID-19 pandemic. However, many immigrants and their families have been left out. Noncitizens who lack Social Security numbers but nevertheless file federal income tax returns using Individual Taxpayer Identification Numbers (ITINs)—including millions of lawfully-present noncitizens and their families—are deemed ineligible for recovery rebates and emergency grants. Even American citizens who file their taxes jointly with someone using an ITIN are denied eligibility.
Analysis and Recommendations: These bills largely failed to provide meaningful support to millions of immigrants and mixed status families throughout the United States. Congress should provide support to mixed status families and take proactive steps to protect immigrants whose status is at risk due to COVID-19.
Introduction
The COVID-19 (the novel coronavirus) pandemic, and the federal government’s response, has disrupted virtually every aspect of the U.S. immigration system. Visa processing overseas by the Department of State, as well as the processing of some immigration benefits within the country by U.S. Citizenship and Immigration Services (USCIS), have come to a near standstill. Entry into the United States along the Mexican and Canadian borders, including by asylum seekers, has been severely restricted. Immigration enforcement actions in the interior of the country have been curtailed, although they have not stopped entirely. Tens of thousands of people remain in immigration detention despite the high risk of COVID-19 transmission in crowded jails, prisons, and detention centers that U.S. Immigration and Customs Enforcement (ICE) uses to hold noncitizens. The pandemic led to the suspension of almost all immigration court hearings and limited the functioning of those few courts which remain open.
This report seeks to provide a comprehensive overview of COVID-19-related disruptions throughout the immigration system and identifies recommendations for adjustments and improvements to the federal response. Given that the landscape of immigration policy is changing rapidly in the face of the pandemic, this report will be updated as needed.
The Effect of COVID-19 on Immigrants and Nonimmigrants Abroad
Citizens of foreign countries who wish to travel to the United States must generally obtain a visa to enter the country. Exceptions exist for citizens and nationals of 39 countries that participate in the Visa Waiver Program. The interviews and processing associated with the issuance of U.S. visas are handled by a network of U.S. Department of State (DOS) embassies and consulates around the world.
The COVID-19 pandemic profoundly impacted the ability of foreign nationals to travel to the United States as both immigrants (people granted permission to permanently reside in the United States) and non-immigrants (people who come to the United States on a temporary basis for work, study, business, or tourism). Much of this is due to changes to routine operations at U.S. consulates which are intended to reduce the rate of infection and protect U.S. personnel abroad. The Trump administration has also prevented nationals of specific countries with high rates of COVID-19 infection from traveling to the United States during the pandemic. Further, the Trump administration issued a proclamation effective April 24, 2020, that suspended the entry of certain immigrants. The stated purpose of the proclamation was preserving employment opportunities for U.S. citizens affected by the economic impact associated with the pandemic. The collective impact of the limitations on visa processing and availability sharply curtailed immigration to the United States for immigrants and non-immigrants alike.
Entry Restrictions Targeting Specific Countries
On February 2, 2020, President Trump issued a proclamation imposing restrictions on entry into the United States of noncitizens traveling from China. On March 2, similar restrictions followed regarding noncitizens traveling from Iran. On March 13, the administration issued restrictions on travel from the 26 European nations of the Schengen Area: 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. On May 24, similar restrictions were imposed on travel from Brazil. The proclamations prevent entry into the United States, as either immigrants or nonimmigrants, of any noncitizens who were physically present within the designated countries “during the 14-day period preceding their entry or attempted entry into the United States.”
However, none of the proclamations fully ban travel to the United States. These restrictions do not apply to any noncitizen who is:
- an LPR of the United States;
- the spouse of a U.S. citizen or LPR; the parent or legal guardian of a U.S. citizen or LPR under the age of 21 and unmarried;
- the child, foster child, or ward of a U.S. citizen or LPR;
- traveling at the invitation of the U.S. government for a purpose related to containment or mitigation of coronavirus;
- traveling as a member of an air or sea crew;
- traveling as a foreign government or NATO official or immediate family member of such an official; or
- a member of the U.S. Armed Forces or spouse or child of said member.
These proclamations have no end date. On the first and fifteenth day of each month, the Secretary of Health and Human Services is required to recommend whether the President “continue, modify, or terminate” each proclamation.
Limitations on Visa and Refugee Processing Abroad
On March 20, the DOS suspended “routine visa services” at all embassies and consulates worldwide. All “immigrant and nonimmigrant visa appointments” were cancelled as of that date. This suspension encompasses applicants for both employment- and family-based immigrant visas, including the relatives of U.S. citizens and LPRs. The suspension also halted the processing of applications for nonimmigrant visas for visitors, students, and skilled workers. However, consulates remain open for “emergency” visa appointments.
The suspension of consular services does not affect services to U.S. citizens or anyone traveling under the Visa Waiver Program who are not required to visit an embassy or consulate to obtain permission to travel to the United States. However, because many Visa Waiver Program countries are in Europe, and people who have recently spent time in the region are subject to restrictions in traveling to the United States, most Visa Waiver Program entrants would be unable to enter the United States without first spending at least 14 days outside of their home country. In addition, the DOS continues to process all H-2 visa cases, which includes temporary agricultural workers, given the importance of that visa category “to the economy and food security of the United States.”
The suspension of visa services temporarily halted the J-1 Exchange Visitor Program, which brings thousands of foreign doctors to the United States. However, medical professionals with an approved visa petition or certificate of eligibility in an approved exchange visitor program can seek an emergency visa appointment at the nearest U.S. embassy or consulate. Given the uncertainty involved in seeking emergency visa appointments, this measure may not meet the need for foreign medical professionals to work in COVID-19 hot spots. As a result, the suspension of visa services at consulates overseas could seriously restrict the ability of medical professionals to get visas. For those that do manage to enter the United States, closures of USCIS offices jeopardize their ability to remain in status once here.
The combined impact of international travel restrictions related to slowing the spread of COVID-19 caused the U.S. refugee resettlement program to grind to a halt as well. On March 17, the United Nations High Commissioner for Refugees and the International Organization for Migration, who facilitate the processing and travel of refugees abroad, temporarily suspended travel by refugees to their country of resettlement.
Presidential Proclamation Suspending Entry of Certain Immigrants to the United States
On April 20, 2020, five weeks after the European travel restrictions were issued, President Trump declared that he intended to sign an executive order that would “temporarily suspend immigration into the United States.”
On April 22, 2020, President Trump signed Proclamation 10014 (the COVID-19 immigration ban), suspending the entry of certain immigrants into the United States for an initial period of 60 days, beginning on April 24. The proclamation relies on authority granted to the President under section 212(f) of the Immigration and Nationality Act to suspend the “entry” of noncitizens whose entry the President has deemed to be “detrimental to the interests of the United States.” This is the same statutory basis that the president invoked in 2017 when implementing bans on the entry of immigrants and nonimmigrants from a number of Muslim-majority and other countries.
The stated justification for the new immigration ban varies from previous orders. The president justified the Travel Ban (or Muslim Ban) on national security grounds, with the stated purpose of further increasing the scrutiny of individual immigrants and nonimmigrants as well as increasing information-sharing between the United States and other nations. Unlike the Travel Ban, the COVID-19 immigration ban suspends the entry of immigrants based on their purported negative impact on the U.S. labor market, not on national security grounds. The proclamation does not include any analysis supporting the claim that suspending the entry of certain immigrants will help native-born workers recover from the economic downturn associated with the COVID-19 pandemic.
The COVID-19 immigration ban primarily targets a unique combination of noncitizens who seek to come to the United States based on their close familial relationships to U.S. citizens or LPRs. As of April 24, 2020, the proclamation suspends the issuance of all new immigrant visas to people outside the U.S. with some exceptions.