U.S. Immigration During & Post COVID-19

This article was written by Shlomi Atash, Esq. |

The COVID-19 pandemic has dramatically impacted immigration policies and procedures globally.  In order to stop the spread of the virus, countries around the world implemented new measures limiting migration.  Many countries have restricted travel, preventing the entry of aliens who have recently traveled to nations with widespread COVID-19 outbreaks.  Some countries have temporarily prohibited the entry of all aliens.  Other countries are conducting mandatory quarantines of non-permanent residents arriving on international flights, as well as enforcing health-screening procedures at their ports of entry.  Numerous countries have temporarily closed their consular posts for all non-essential or non-emergency services.  The terms essential and emergency remain subjective.  All countries have issued health advisories against nonessential international travel.  The majority of countries around the world are emphatic that their citizens should not travel to countries where the virus has taken a toll.

In the United States, the COVID-19 pandemic has disrupted nearly every aspect of our immigration system.  The government froze visa processing by overseas U.S. Consulates during the first several months of the pandemic.  At the same time, the processing of a diverse array of immigration benefits within the U.S. came to a grinding halt, only to begin to once again be slowly processed over the last two months.  Entry to the U.S. from Canada and Mexico has become severely restricted. The restrictions even include asylum seekers.

The pandemic led to the suspension of nearly all immigration court hearings for several months.  The few courts that remained open operated under reduced functionality.  Over the course of the last several weeks, courts began to resume hearings but only for detained aliens.

With the exception of citizens of Visa Waiver Program countries, all aliens who wish to travel to the U.S. must, with a few arcane exceptions, obtain a visa to enter the country.  Unfortunately, the consulates that handle interviews and standard visa processing have been closed to non-emergency operations since March 16^th.  The closures will remain in effect in the majority of countries until at least September.

This past February, President Trump issued a proclamation imposing restrictions on the entry of noncitizens travelling from China, in order to stanch the flow of the virus.  In March, following the release of data showing high-levels of COVID-19 infections in Europe and other nations, President Trump issued similar restrictions on the Schengen nations (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) as well as Iran.  In May, similar restrictions were imposed on Brazil, which has since passed 1 million COVID-19 cases.  The proclamations prevent entry into the United States to any noncitizen physically present in these countries, regardless of his/her national origin.

The pandemic has greatly impacted the ability of foreign nationals to travel to the United States, with no accounting for whether they are immigrants (green card holders) or non-immigrants (coming for work, school, or tourism).  Changes to routine operations at U.S. Consulates, that were intended to protect U.S. personnel abroad, have caused unforeseen havoc for the entirety of the U.S. immigration system.  The system was further destabilized on April 24^th, when in an effort to protect American jobs during a time of high unemployment following the pandemic, the White House released a proclamation entitled, “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak.”  The proclamation suspended the entry of ‘aliens as immigrants’ subject to several exceptions for a period of sixty days.  Aliens residing in the U.S. could still change to immigrant status through USCIS within U.S. borders.  This proclamation was toothless in regard to protecting American jobs but created disarray for the system.  President Trump released a second proclamation on June 22^nd.  This proclamation immediately suspended the entry of any aliens seeking entry pursuant to the nonimmigrant visas H-1B, H-2B, L-1, or J-1.  Similar to the May proclamation, the suspension only affected aliens outside of the country.  The true scope of the proclamation remains in the hands of the State Department and the Department of Homeland Security as they release FAQ’s and iron out the details.  This proclamation remains in effect until the end of 2020.

The suspension of entry has dramatically affected both individuals and corporations.  Our office has received hundreds of calls and emails from people stuck in limbo both in and outside the United States, seeking advice and solutions.  Several companies we represent were in the process of transferring executives to the U.S. by means of L-1 visas.  The companies are now unable to complete the process.  These executives hold specific knowledge that is critical to the operation of the American satellite companies of global corporations.  The release of such a broad proclamation has not only damaged the immigration system, it could harm the American economy and the very workers it is meant to protect.

Numerous new non-immigrant H-1B workers had recently submitted their petitions after being selected though the lottery when the proclamation went into immediate effect.  Many will be forced to leave the country if they cannot continue in another status.  If their occupation does not meet the proclamation’s narrow exceptions they will be forced to wait in their home country until the end of the year.  Nonetheless, many H-1B visas are filed as a change of status within the U.S.  Workers already present in the U.S. will not be forced to return home.  The order only applies to non-immigrants overseas.  Again, it will have limited effect protecting the American worker.

An additional DHS order that would force international students studying remotely to return home was revoked by the government after complaints from top colleges including Harvard University.

Across the globe, there is a tension between technocratic governments that support increased immigration and populist governments that support reducing immigration.  The American people are currently divided on the subject with a recent Gallup poll showing that 36% want legal immigration to be kept at the current level, 34% want immigration increased, and 28% want legal immigration to be decreased.  The numbers change according to the wording of the polls.  When jobs and terms such as ‘H-1B’s’ are mentioned in the pollster’s questioning, support for legal immigration dramatically decreases.  However, studies show that more stringent requirements on H-1B visas have a direct relationship with foreign affiliate employment and outsourcing.  The Trump administration’s policies have led to a 92% decrease in family-based visas over the last five years.  The non-partisan National Foundation for American Policy projects that administration policies will lead to a 49% reduction in legal immigration between FY2016 and FY2021.

COVID-19 will undoubtedly slow global migration as laid-off workers call for more stringent restrictionist policies.  The continuing closure of the American tourism industry will also lead to reductions.  The Trump administration is currently pursuing a merit-based system modeled upon Senator Tom Cotton’s (R-AR) RAISE Act, which will move the U.S. in line with Canadian policies.  In the short term, fears surrounding the COVID-19 epidemic will decrease immigration to the United States.  We do not expect the virus to scuttle the United States’ transformation from a primarily family-based system to an employment-based system.  If recent trends continue, the United States will implement a merit-based system, while greatly reducing asylees, refugees, diversity-based quotas, and family-based ‘chain migration’.

COVID-19 has dramatically transformed international immigration.  Many of the orders issued by governments have been overly complex and self-defeating.  In our fast changing environment we always recommend consulting with an immigration lawyer before any international travel.

AUTHOR:

• Shlomi Atash, Esq., Attorney & Founder, ATASH LAW P.C. | shlomi@atashlaw.com  | +1 646 820 0662 |

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