Department of Homeland Security: USCIS, ICE, and CBP

USCIS: Many immigration benefits and requests are submitted to USCIS service centers by mail and those offices continue to operate and are processing cases. Receipt notices are being issued, as are work permits, travel permits, green cards, I-797 Approval Notices, and other official notices. And, while requests for evidence (RFEs) and notices of intent to deny (NOIDs) are also being issued, for those notices dated between March 1, 2020 and May 1, 2020, responses submitted within 60 calendar days after the response deadline will be considered timely filed. The following are other changes in policy by USCIS:

USCIS Offices Closed Until May 3 for All In-person Services

USCIS closed its field offices, asylum offices, and application support centers to the public through May 3. That means all in-person interviews, biometrics appointment notices, and InfoPass appointments have been suspended. All scheduled appointments are being automatically rescheduled by USCIS for dates in the future when USCIS resumes normal operations. Applicants (and petitioners) do not need to contact USCIS.

Scanned Signatures Accepted on Immigration Forms

USCIS announced that it will accept all benefit forms and documents with scanned, faxed, or photocopied original, handwritten signatures for submission with USCIS, eliminating the need for petitioners, applicants, and beneficiaries to mail hard copy original documents. Electronic signatures, however, are NOT acceptable. Signatories should retain their original signed documents in case USCIS requests them. USCIS has not, however, eliminated original photo requirements for those forms that require them.

USCIS to Reuse Biometrics for Work Permit Renewals

Applicants who file I-765 work permit extensions will have their applications processed using previously submitted biometrics. Whether USCIS issues work permits (and travel permits) for first time applicants remains to be seen, as no announcement from USCIS has been made.

USCIS Has NOT Issued Automatic Maintenance of Status for Nonimmigrants or Extension of Immigration Benefit Deadlines

While USCIS has made accommodations for the filing of some cases and is holding others in abeyance without prejudice to the applicants, it has not, significantly, instituted a nationwide policy automatically extending status for those currently in status or extending immigration benefit deadlines, which would alleviate the pressure and anxiety confronted by a myriad of nonimmigrants, their employers, and other affected by status issues. In response, the American Immigration Lawyers Association (AILA) filed a complaint against USCIS in U.S. district court requesting the immediate suspension of immigration benefit deadlines and the maintenance of status for nonimmigrants in the United States. AILA Director of Federal Litigation Jesse Bless said, “USCIS has every power to immediately and temporarily toll any and all immigration-related deadlines and expiration of status to the benefit of U.S. employers, lawfully admitted foreign nationals, and the public. Many of those fighting on the front lines – our nurses and healthcare workers – are foreign nationals on nonimmigrant visas. At present, immigration attorneys seeking to effectively represent U.S. employers and foreign nationals face a dangerous catch-22: risk exposure and try to protect their clients’ immigration status, or protect themselves and risk putting their clients’ cases or rights in jeopardy.”

Other DHS/USCIS-Related Issues

Obviously, the pandemic is wreaking havoc with being able to predict with any semblance of certainly when cases in the pipeline will be adjudicated. Common sense tells us that the processing of cases where anything in-person is required will be delayed. Will, however, USCIS waive the interview requirements for employment-based adjustment of status cases as it has in the past? Will it waive interviews for parent-child adjustment cases? Will it conduct telephonic interviews for marriage-based cases? Each day new issues of concern to nonimmigrants and immigrants alike arise.

One recent concern of intending immigrants is how the receipt of unemployment benefits could impact their case. USCIS has stated that unemployment benefits are not considered by USCIS in a public-charge inadmissibility determination because unemployment insurance is considered by USCIS as an “earned” benefit. (Whether a foreign national on a work visa can apply for and receive unemployment benefits is another matter and may vary from state to state. Most states are beginning to provide specific guidance on applying for these benefits during the COVID-19 crisis on their unemployment websites.) Furthermore, the one-time payments called recovery rebates (or commonly known as “stimulus checks”) to help individuals recover from the economic impacts of the COVID-19 pandemic under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, are structured as tax credits and are not taken into account for the purpose of a public charge determination.

USCIS also has announced that it will not consider testing, treatment, or preventative care (including vaccines, if a vaccine becomes available) related to COVID-19 as part of a public-charge determination, nor as related to the public-benefit condition applicable to certain nonimmigrants seeking an extension of stay or change of status, even if such treatment is provided or paid for by one or more public benefits (e.g., federally funded Medicaid). USCIS has indicated that such treatment or preventive service “will not negatively affect any alien as part of a future public charge analysis.”

For nonimmigrant workers, furloughs and terminations mean that they are out of status, although generally most will have a 60-day grace period to find new employment or be rehired. For their employers, rehires mean new I-9s. DHS has announced, however, that employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Section 2 documents remotely (e.g., via video link, fax, email, etc.) and obtain, inspect, and retain copies of the documents within three business days for purposes of completing Section 2 of the I-9. Employers who avail themselves of this option must provide written documentation of their remote on-boarding and telework policy for each employee. Additionally, employers who were served a Notice of Inspection (NOI) by DHS during the month of March and have not already responded will be granted an automatic extension for 60 days from the effective date. At the end of the 60-day extension period, DHS will determine if an additional extension will be granted.

ICE and Interior Enforcement: ICE continues to remain operational during the COVID-19 pandemic; however, the agency has promised to refocus its enforcement priorities. On March 18,  ICE ERO (Enforcement and Removal Operations) announced that it would focus enforcement on public safety risks and individuals subject to mandatory detention based on criminal grounds. The agency also announced that it would not carry out enforcement operations at or near healthcare facilities, such as hospitals, doctors’ offices, accredited health clinics, and emergent or urgent care facilities, except in the most extraordinary of circumstances. Homeland Security Investigations (HSI) will continue its work with prosecutors from the Department of Justice in carrying out investigations into child exploitation, human trafficking, human smuggling, gangs, and narcotics trafficking. The following changes have also been implemented by the agency in response to COVID-19:

Bonds May Only Be Posted at ICE ERO Locations with Windows

ICE will limit the acceptance of bonds to locations with “bond windows” or other appropriate barriers that will limit exposure to staff.

Stays of Removal May Be Filed via Mail

ICE announced that it will permit Stays of Removal (Form I-246), to be filed through the mail, accompanied by money orders and certified funds.

No Social Visits for Detainees

ICE has temporarily suspended social visitation in all of its detention facilities. Communication between family members and detainees is still available via telephone. In-person visitation is still permitted for legal representatives. Prior to undergoing the visit, legal representatives must undergo the same screening as staff members to enter the facility and are required to bring their own personal protective equipment.

Potential Release of Vulnerable Detainees

ICE identified 600 potential vulnerable detainees eligible for release amid the COVID-19 outbreak. As of April 7, the agency reported that more than 160 vulnerable detainees have been released. ICE indicated it would make is determinations based on guidance from the Centers for Disease Control, and will review cases for individuals who are over the age of 60 and those who are pregnant. While it is encouraging that some detained individuals are being released, the response is inadequate to address the humanitarian crisis, as there are over 35,000 ICE detainees in overcrowded detention centers that are ripe for mass infections and casualties.

Civil Rights Organizations File Lawsuits Against ICE to Secure Release of Detainees

While U.S. jails and federal prisons are releasing inmates throughout the country as a result of the COVID-19 epidemic, ICE has not made a similar effort to release immigrants who are currently detained. Currently, there are approximately 35,000 inmates detained by ICE and more than 60 percent of them do not have a criminal record. Only a small percentage of ICE detainees have been convicted of a violent crime.

Immigration advocates, human rights groups, politicians, doctors, and immigration judges have called for the release of nonviolent ICE detainees amid the pandemic. ICE detainees are particularly vulnerable given the unsanitary conditions of the facilities and the unavoidable lack of  “social distancing.” Immigration detention centers have been scrutinized and sued for providing substandard medical care that has resulted in the death of inmates. The spread of COVID-19 in immigration facilities also posses a medical risk to ICE agents, medical personnel, contract workers, and individuals who work in detention facilities and their families.

In response to ICE’s inaction, the ACLU, Southern Poverty Law Center, Northwest Immigrants Project, and other civil rights organizations have filed lawsuits against ICE to secure the release of medically vulnerable detainees. Currently, federal courts in California, Washington, and Louisiana are considering the release of other ICE detainees amidst the COVID-19 outbreak. In Maryland, ICE detainees held in a Jessup facility will begin COVID-19 testing as a result of a lawsuit; however, the judge in that case declined to release detainee.

In another suit, rights groups filed a motion for an emergency restraining order (TRO) to seek a temporary pause all in-person immigration court hearings and to facilitate confidential communications between detained individuals and their attorneys. The hope behind the TRO is that the temporary pause would, among other policy changes, allow immigration courts and ICE to adopt practices that would allow for remote hearings via teleconference.

Continued detention of individuals detained by ICE also possesses logistical challenges and health risks to their immigration attorneys. While immigration courts have postponed non-detained hearings through May 1, detained hearings continue to be heard, exposing attorneys to risks of exposure to COVID-19 at immigration courts and detention centers. And, as of March 25, attorneys representing detained immigrants are required to provided their own personal protective equipment (PPE) when visiting clients or making an in-person appearance in court.

Meanwhile, on a related note, the U.S. Circuit of Appeals for the Ninth Circuit affirmed an injunction in California requiring bond hearings for immigration detainees with removal orders who have been detained for six months or more.

CBP and Border Enforcement: One big issue of concern to foreign nationals involves their admission to the United States to maintain their status, such as lawful permanent residents (LPRs) who have been outside of the U.S. for six months or more, and those entrants who are required to depart the U.S. at the conclusion of their 90-day period of admission. USCIS has not advised on what LPRs can do to maintain their permanent-resident status if they are now stuck abroad for 12 months or more. Under the law, LPRs who are abroad for 12 months or more are presumed to have abandoned the intent to reside permanently in the United States and can inadvertently lose their green cards. Presumably, those LPRs outside of the U.S. for 6-12 months will be able to demonstrate that their lengthy departure was clearly beyond their control and will be admitted without incident. Foreign nationals are encouraged to document their intent to return to the United States. For ESTA entrants who are unable to depart the U.S. and who are not permitted to file an application to extend their stay, many airport deferred-inspection offices are accepting “satisfactory departure” requests for up to 30 days. Presumably those requests can be extended.