COVID 19 – UPDATE: Department of Homeland Security: USCIS, ICE, and CBP

USCIS

USCIS Offices Reopened for Most Nonemergency Services

As of June 4, 2020, many domestic USCIS field offices and asylum offices re-opened for normal face-to-face services to the public on an appointment basis. Application support centers (ASCs) remain closed but are expected to open beginning in mid-July. This means all in-person interviews have been resumed. All scheduled appointments are being automatically rescheduled by USCIS. Applicants (and petitioners) do not need to contact USCIS. Visitors may not enter a USCIS facility if they have any symptoms of COVID-19, and visitors may not enter the facility more than 15 minutes prior to their appointment (30 minutes for naturalization ceremonies). Visitors must also wear facial coverings that cover both the mouth and nose when entering facilities, and visitors are encouraged to bring their own black or blue ink pens. Attorneys will be permitted to accompany their clients or attend an interview telephonically. Naturalization ceremonies will be shorter to limit exposure to those in attendance. However, all legally required portions of the ceremony will take place. Attendance is limited to the naturalization candidate and individuals providing assistance to disabled persons.

While adjustment of status cases are not subject to the Presidential Proclamation, no specific guidance has been provided by USCIS regarding the rescheduling of cancelled interviews or the first time scheduling of interviews for newer cases, now that field offices have reopened. There have been some reports that USCIS is giving priority to naturalization cases. Clients will have to continue to wait.

USCIS Resumes Premium Processing

USCIS has resumed premium processing for all Form I-129 and I-140 petitions, having phased in the process during the month of June. Petitioners who had already filed Form I-129 or Form I-140 using the premium processing service before the March 20 suspension, but who received no action and a refund, may refile their Form I-907 consistent with the timeline above, barring any changes USCIS may announce in the future.

Asylum Offices

While asylum offices have reopened for previously scheduled interviews, they remain closed for walk-in assistance and noninterview inquiries. Interviews that were scheduled during temporary closures will automatically be rescheduled. Asylum offices are expected to conduct video-facilitated interviews, where the applicants sit in one room and the interviewer in another room. Asylum offices will use available technology, including mobile devices provided by the agency, to ensure that the officer, applicant, interpreter, and representative can fully and safely participate in the interview while maintaining social distancing.

ICE and Interior Enforcement

According to its website, ICE will continue to only prioritize cases involving foreign nationals who are public-safety risks or who are subject to mandatory detention based on criminal grounds. In-person office and home visits have been temporarily been suspended; however, telephonic and electronic reporting still remains in use. ICE has continued to promise not to make arrests at or near medical facilities, absent extraordinary circumstances. Social visits for ICE detainees continue to be unavailable at this time. 

DHS has also announced that it is extending its flexibility in rules related to Form I-9 compliance during the pandemic by an additional 30 days. These include prosecutorial discretion to defer the physical-presence requirements associated with Form I-9 and an additional 30-day extension for notices of inspection (NOIs) served in March 2020. The expiration date for these accommodations is now July 19, 2020. Identity documents found in List B set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes.

CBP and Border Enforcement

Unauthorized border crossings along the U.S. border with Mexico have dropped by 50 percent in April, according to federal statistics. CBP officers have detained and expelled migrants at the border, bringing detentions down from about 3,000 to 100. Among the expedited expulsions are hundreds of unaccompanied minors. Under law, these unaccompanied children should be taken to shelters run by Health and Human Services until they can be placed with a guardian in the United States. It appears that the Trump Administration wants to circumvent the legal protections afforded to unaccompanied minors, which they have offensively decried as “loopholes.”

Visa Waiver travelers who are unable to depart because of COVID-19 may still apply for 30-day extensions of their admission periods by contacting any local CBP port of entry or deferred-inspection site.

Department of State and U.S. Embassies Abroad

Routine immigrant and nonimmigrant visa services remain canceled; however, emergency services are available for air and sea crews, medical personnel treating or mitigating the effects of COVID-19. Likewise, services remain available for U.S. citizens abroad.

Department of Justice and the Immigration Courts

With the exception of the Honolulu Immigration Court, Immigration Courts remained closed for nondetained hearings. The Boston, Buffalo, Dallas, Hartford, Las Vegas, Memphis, and New Orleans Immigration Courts are scheduled to resume nondetained hearings on June 29, 2020. Hearings in nondetained cases at all other immigration courts are postponed through, and including, Thursday, July 2, 2020. All immigration courts will be closed Friday, July 3, 2020, in observance of Independence Day. Receipt stamps continue to be issued for defensive applications, motions, pleadings, and evidentiary filings. Similarly, the BIA continues to accept notices of appeal, briefs, and motions.

Fifteen immigration courts experienced closures as a result of protests of police brutality. The latest court closures and standing orders can be found on EOIR’s operational status webpage 

According to a June 11, 2020, EOIR policy memorandum, all visitors of immigration courts are required to wear face coverings, except for children under two years of age. Visitors who do not wear face coverings or observe social distancing will be denied access to EOIR space. EOIR has also announced that it will no longer accept email filings 60 days after the court has resumed nondetained hearings.

Department of Labor

The Department of Labor’s Office for Foreign Labor Certification (OFLC) will continue to issue notifications via email.  On June 16, 2020, the OFLC extended the period during which the Atlanta National Processing Center will issue PERM Labor certification documents electronically through September 30, 2020.  Initially this period was from March 25, 2020 through June 30, 2020. 

The OFLC officially confirmed on May 20, 2020 that despite various state requirements for employees to remain at home under the pandemic, the Notice of Filing is required to be posted physically,  stating the notice must be “visible” and posted “where U.S. workers can readily read the posted notice on their way to or from their place of employment” and such requirements cannot be replaced by other electronic means (unlike H-1B posting requirements). Therefore, employers may not be able to meet posting requirements until employees are working back in the workplace.