Article Summary

Ojo-Ade

Aspiring immigrants to the U.S. already face many uncertainties, but the COVID-19 pandemic has raised a host of urgent new questions — from whether getting a coronavirus test will jeopardize your immigration status (it won't) to whether non-permanent residents can receive unemployment benefits or stimulus checks (it depends). Here our firm does its best to address the top coronavirus-related concerns we've heard from clients.

This article by former associate Tomi Ojo-Ade was published by The Employment Law Group, P.C. on April 24, 2020.

By Tomi Ojo-Ade

INTRODUCTION

Hundreds of millions of people across the United States have been thrown into turmoil by the COVID-19 pandemic. Aspiring immigrants face an extra layer of uncertainty, however, as the status of their cases becomes murky and they hesitate to interact with U.S. authorities — even to protect their own health — for fear of jeopardizing their legal standing.

Below are answers to some of the most common questions we are being asked by our law firm’s immigration clients, based on our firm’s best knowledge as of April 24, 2020. Please note, however, that nothing is certain in this fast-moving crisis — and everyone’s circumstances are different anyhow. For advice on an individual situation, please contact our immigration attorneys.

This article has been revised from its original version to include questions about President Trump’s April 22 proclamation suspending the entry of certain aliens into the U.S.

WHAT YOU NEED TO KNOW

IMPORTANT: The following Q+A is intended as a general summary of facts and law and not as legal advice upon which you should rely or act. Every immigration case is unique and fact-specific.

Q: My application for a green card is currently pending. I live in the U.S. Will President Trump’s April 22 proclamation stop my application from moving forward or being approved?

A: It should not. The proclamation affects only applicants who were outside the U.S. without a valid immigration visa or official travel document as of April 23, 2020, the effective date of the proclamation.

Q: I am a non-immigrant worker who is employed in the U.S. on an H-1B visa. Does the April 22 proclamation change my status?

A: As of April 24, 2020, neither current H-1B holders nor employer-sponsored applicants are affected by the proclamation. However, the proclamation does require a high-level review of all temporary visa programs (which includes the H-1B) and the recommendation of “measures appropriate to … ensure the prioritization, hiring, and employment of United States workers.” No one yet knows what such measures might include.

Q: I am a U.S. resident who has filed an immigrant petition on behalf of my spouse, who lives outside the U.S. Does the April 22 proclamation suspend that application?

A: It depends. If you are a U.S. citizen or a member of the U.S. Armed Forces, your spouse and any of your children under the age of 21 are exempt from the proclamation. If your spouse falls into certain other categories, he or she also may be exempt: Healthcare professionals, for instance, or others with skills needed to help in the COVID-19 pandemic; immigrant investors under the EB-5 program; Afghan or Iraqi nationals who worked for the U.S. government; or others whose entry is deemed to be in the U.S. national interest. For a full list, see the proclamation itself. Some of its exempted categories are clearly defined but others depend on the judgment of government officials. If you think your spouse might be exempt, ask an immigration attorney about the best next step.

Q: I don’t yet have a green card. If I lose my job because of the pandemic, can I safely apply for unemployment insurance?

A: Receiving unemployment benefits shouldn’t count against you under the so-called “public charge” doctrine, since these benefits are deemed to be “earned” and therefore are excluded from the rule as implemented.

(As a general matter, the public charge doctrine says that individuals may be barred from the U.S. if they’re likely to depend on taxpayers for their support. Before the pandemic, the Trump administration began enforcing this rule more aggressively than in the past.)

It’s important to note that a non-permanent resident must be authorized to work in the U.S. without restriction in order to be eligible for unemployment insurance, including the enhanced benefits provided by federal and local pandemic legislation — so you can’t receive the money if your employment is limited to a particular employer, as an example.

More broadly, your eligibility for unemployment insurance will depend on the following:

1. Whether you have worked long enough for a covered employer — rules vary by state, and may have been loosened in some cases via short-term pandemic relief measures;
2. Whether you were fired for cause, which generally is a disqualifier; and
3. Whether you remain able and available to work.

As a non-immigrant applying for unemployment benefits, you must be able to provide your Alien Registration Number (“A Number”) and a valid Employment Authorization Card issued by U.S. Citizenship and Immigration Services (USCIS). When you apply, your state will check your eligibility with USCIS.

Q: I’ve lost my income due to the pandemic. Can I apply for benefits such as Medicaid, the Supplemental Nutrition Assistance Program (“SNAP,” formerly known as food stamps), or housing assistance during this crisis?

A: In general, non-permanent residents — including applicants for adjustment, change, or extension of status — are not eligible for these benefits. As noted above, receiving certain government benefits (or even just applying for them) can trigger the public charge rule and endanger the applicant’s eligibility for permanent resident status.

However, USCIS doesn’t apply the public charge doctrine in some specific situations that might broadly be described as compassionate, such as:

• Medicaid payment for the treatment of an emergency medical condition;
• Medicaid benefits received by an alien under 21 years of age;
• Medicaid-funded services provided under the Individuals with Disabilities Education Act;
• School-based services or benefits provided to eligible children; or
• Medicaid benefits received by a woman during and for 60 days after a pregnancy.

If you’re considering applying for a government benefit and are unclear whether it’ll trigger the public charge rule, ask an attorney before proceeding.

Q: I might have COVID-19. Will getting a coronavirus test, a positive diagnosis, or treatment endanger my immigration status?

A: No — so please go ahead and consult a doctor.

To address the health emergency and to reassure understandably nervous aliens, USCIS has stated clearly that it will not consider COVID-19 testing, treatment, or preventative care — including vaccines, if a vaccine becomes available — in its determination of public charge inadmissibility, nor in any consideration of extension of stay or change of status applications, even if such care is provided or paid for by a public benefit such as Medicaid.

More generally, the public charge rule does not restrict your access to testing or treatment of other communicable diseases beyond COVID-19 — and it does not restrict your access to vaccines.

Also, with regard to medical necessity overall, it’s worth knowing that even a public charge “violation” is only one among many factors considered by USCIS when it determines an alien’s admissibility. Circumstances matter, and there is no firm “one strike and you’re out” policy. Put your health first and consult with an attorney as needed.

Q: Is my household eligible for a stimulus check under the CARES Act?

A: So-called stimulus checks — direct payments under the law known as CARES (Coronavirus Aid, Relief, and Economic Security) — are generally available to anyone who has a legitimate “work-eligible” Social Security Number and meets the law’s income requirements. This may include undocumented immigrants if they filed a tax return for 2018 or 2019.

If you (or your spouse or dependent) use an Individual Taxpayer Identification Number rather than an SSN, however, you won’t receive a stimulus payment. Also, if you’re a non-citizen who doesn’t hold a green card and hasn’t spent much time in the U.S. in the past three years, you may be ineligible for a payment.

Q: I have an interview/ceremony coming up in a couple of weeks at a USCIS field office. Will it be cancelled?

A: USCIS has suspended most in-person services and won’t start reopening its shuttered domestic offices until May 4, 2020 at the earliest — a date that may be extended, depending on conditions. If your interview (or naturalization ceremony) is scheduled for a time when your field office is closed, you should receive a rescheduling notice.

If you are in doubt about the status of an appointment, ask your attorney — or, if you are handling your own case, use the USCIS’ online tools or try calling USCIS at +1-800-375-5283.

Q: I have a court hearing coming up. Will it still happen?

A: Most immigration courts are closed except for filings and hearings for applicants who are in detention. You or your attorney should contact the court clerk for clarification, but unless you get a rescheduling notice you must be ready to show up. Failure to appear at a scheduled hearing can result in an order of removal being entered against you: Even if you end up knocking on a locked door because of a communication failure, it is better to err on the side of caution.

Q: I am under an order of supervision and have been reporting to the ICE office monthly. Must I keep showing up?

A: U.S. Immigration and Customs Enforcement (ICE) has suspended in-person check-ins until further notice. However, you still must stay in contact with your local field office and follow its direction; ICE recommends using the phone. If you already have missed an appointment, reestablish contact with your case specialist immediately.

Q: My case/application is currently pending at USCIS. Is it still proceeding at the regular pace during this pandemic?

A: So far the only delays that USCIS has acknowledged are in cases that require an in-person appointment. The agency continues to accept and process immigration applications, except that it has suspended “premium” (paid expedited) processing for I-129 and I-140 visa petitions. If your case is already pending, it’s likely progressing at a normal rate — although as most immigration attorneys will tell you, “normal” varies widely even outside a pandemic.

Q: I arrived in the U.S. on a valid non-immigrant visa. My authorized stay is about to expire but I can’t return to my home country, which has banned arrivals from the U.S. and transit countries. How can I avoid being in the U.S. unlawfully?

A: Non-immigrants who must unexpectedly remain in the U.S. can apply to extend their visa stay based on the COVID-19 pandemic — and if you already have overstayed, a belated application may be excused by “extraordinary circumstances,” which should be a relatively easy case to make.

If you entered the U.S. under the Visa Waiver Program (VWP) — if you’re a citizen of a Western European country, for example — you can ask USCIS to give you a 30-day extension via a “grant of satisfactory departure.” If you’re unable to leave within this extra 30 days for pandemic-related reasons, USCIS has the flexibility to grant you an additional 30 days.

Q: My case is based on a showing of hardship to my family members, who are U.S. citizens. If I apply for government benefits on behalf of my children during this emergency, will that hurt my immigration case?

A: Receiving lawful aid on behalf of a U.S. citizen isn’t a violation of the public charge rule: USCIS considers only government benefits received for your benefit. Nonetheless, a hardship application generally requires you to show that you’re the primary source of support for your U.S. family members. If your family gets government assistance, that may undercut your argument to remain in the country. You should consult an immigration attorney to weigh your options.

Q: I’m trying to gather papers to comply with a request for additional evidence, but the pandemic has restricted my travel — and the responsiveness of my document sources. Can I get an extension?

A: If the underlying request was issued between March 1, 2020 and May 1, 2020, USCIS will consider your response if it arrives up to 60 days after the due date. This applies to responses to official notices such as Requests for Evidence, Notices of Intend to Deny, Notices of Intent to Revoke, and Notices of Intent to Terminate. If your notice was issued prior to March 1, 2020, however, you must meet the deadline set in the notice.

If even if you have some leeway under the March 1 rule, it’s still a good idea to respond as quickly as you can — without sacrificing the quality of your response, of course.

If you would like to discuss your individual circumstances, our attorneys are available to you.

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Tomi Ojo-Ade is a former associate of The Employment Law Group, P.C.