As COVID-19 has dominated headlines by sweeping across the globe and the United States with almost unmatched pace and fury, the Trump Administration has been criticized for failing to adequately prepare the American public for the ravages of the virus. While the country’s immigration service has obviously taken a backseat to the other social services that are currently of greater importance, the country’s immigration machinery has slowed to a crawl.
Borders to the north and south have been closed to non-essential travel; USCIS interviews for citizenship and green cards have been cancelled and will need to be rescheduled for an unknown date in the future; court hearings for all non-detained individuals have similarly been cancelled; consulates worldwide have closed, leaving visa applicants uncertain as to when and if they will be able to obtain a visa when consular doors reopen.
As with many aspects of our collective lives, the immigration consequences of COVID-19 are shrouded in uncertainty. USCIS has provided some information in response to the outbreak, although critics have indicated that the agency has been short on specifics for individuals stuck in unclear situations. USCIS has indicated that individuals that have been prevented from timely departures from the United States may apply for an extension or changes of status, even if his/her period of authorized stay has expired, if the delay was due to “extraordinary circumstances beyond your control.”
USCIS has been less clear as to what effect the growing economic disaster is going to have on the status of non-immigrant workers, such as TN, L-1 or H-1B visa holders.
Traditionally, when an individual is terminated from employment with a sponsoring employer, that individual’s immigration status similarly terminates rendering them out of status. Policy interpretations have provided for grace periods to allow for workers to find replacement jobs, but with fears that COVID-19 may result in an unemployment rate approaching or exceeding that of the Great Depression (24.9%), laid off workers may be left without options entirely – state-by-state lockdowns may inhibit departing the country and finding an alternate job position may be a pipedream.
Complicating the issue is the lack of any real guidance from USCIS on how to troubleshoot the issue. Because USCIS is charged with interpreting and implementing existing statute, guidance on this point would be helpful, as thousands of non-immigrant workers are going to be facing this exact situation in the days, weeks and months ahead.
H-1B workers are particularly impacted, as they are bound by the conditions outlined in their specific H-1B applications. Typically, H-1B employees that are facing a “material change” in their job circumstances are required to file an amended H-1B application, reflecting such a change.
Current regulations allows for employees to move to locations within the same metropolitan statistical area as was included in the original H-1B filing without the need for an amended H-1B filing; for workers moving to locations outside of metropolitan statistical area originally included in the H-1B application, employers can utilize the “short-term placement” regulations, which allow for workers to be placed anywhere for up to 30 workdays.
For placements that exceed 30 workdays, employers are thereafter required to submit an amended H-1B application to USCIS, as such a change would be considered material under H-1B regulations. With current projections for stay-at-home orders to be stretching into mid-June, employers may be pushed into filing amended H-1B applications to ensure that they are in compliance with existing H-1B guidelines.
USCIS has relaxed some policies as they apply to filings, permitting electronic signatures instead of “wet” ink signatures on certain forms, but clarifying that the original wet signature may be required at a later point in time.
While punting on issues related to workers, USCIS has indicated that students may be able to seek authorization for off-campus employment, although obtaining such employment would require a student to apply for an employment authorization card, for which the processing times range between 1 ½ to 5 months at the USCIS-Potomac Service Center and 4 to 5 months at the USCIS-California Service Center.
Ironically, USCIS has put forth no guidance on how school closings impact an F-1 student’s overall lawful status.
While federal officials are undoubtedly working under unprecedented circumstances, the gravity of the present situation demands more clarity and directive from USCIS leadership. While the health of our citizenry should rightfully be our nation’s foremost consideration, we should equally expect our other agencies to place our collective mental health at ease in times of crisis, for which some action from USCIS would be quite helpful.