[Author’s Note: This article was originally published on May 8, 2020 by the Bureau of National Affairs, Inc., on Bloomberg Law, and is accessible here. It is reproduced with permission from The Bureau of National Affairs, Inc. (800-372-1033) www.bloombergindustry.com. Copyright 2020]
Covid-19’s impact is ongoing and Americans are eager to return to “normal.” Epidemiologists, however, tell us that until a vaccine is ready or we develop herd immunity the virus will appear and reappear in phases, producing rolling and roiling hot spots across the country. One of the hottest of hot spots continues to be the legal immigration system.
On April 22, President Donald Trump issued a proclamation banning most new arrivals on immigrant visas for 60 days because of the perceived impact of foreign workers on the U.S. economy. While his order did nothing to restrict the continued employment of noncitizens now in the country, he instructed the secretaries of Homeland Security, State, and Labor to review temporary visa programs and recommend steps “to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”
According to Stephen Miller, the president’s top anti-immigration adviser, guest worker programs are in the crosshairs, as he explained during a private call in which he tried to mollify restrictionists who believed the proclamation didn’t go far enough.
Ironically, also in April, researchers from the National Bureau of Economic Research and Harvard Business School reaffirmed the findings of earlier studies that immigration is a net boon for the U.S. economy, accounting for about a quarter of U.S. invention and entrepreneurship despite a generally inhospitable policy environment.
In the meantime, Congress has pusillanimously refrained from taking bold action to protect employers and their noncitizen workers already here and thus limit the pandemic’s avoidable detritus. Unlike in the immediate aftermath of 9/11 (where legislation included emergency remedial provisions to protect affected immigrants hurt by the tragedy), there’s been no movement in this Congress to limit Covid-19’s immigration fallout—aside from an effort to help some health-care workers.
Federal Authorities Ignore Calls to Relax Deadlines
Almost as quiescent as Congress, federal immigration authorities—primarily within U.S. Citizenship and Immigration Services (USCIS), the component within DHS responsible for deciding requests for legal immigration benefits—have largely ignored calls to relax immigration compliance deadlines and burdens, or prolong current grants of employment authorization.
On March 16 the Alliance of Business Immigration Lawyers (ABIL) urged federal immigration authorities to “help fight COVID-19 by suspending all immigration deadlines.” The American Immigration Lawyers Association (AILA) also wrote a series of increasingly urgent letters on March 16, March 20, and March 23, and the U.S. Chamber of Commerce made essentially identical requests by letter on April 16.
Adding to the chorus, numerous other organizations, including the Association for Health Care Agencies, the New American Economy, and Americans for Prosperity, requested similar relief in an April 17 letter.
Because stakeholder pleas have fallen on seemingly deaf ears, AILA filed a suit against the DHS and USCIS on April 3 asserting that the defendants’ unwillingness to act by declining to extend deadlines and preserving the legal-immigration status quo has endangered public health and thus violated the Fifth Amendment’s due process clause and the Administrative Procedure Act.
USCIS remains all but silent or miserly in response. The agency has mostly said what it can’t or won’t do but has offered little in remedy or consolation.
- USCIS has suspended its Premium Processing Service for all employment-based petitions, thus eliminating any realistic hope for expedited action.
- It has closed its field offices and application support centers (although it will continue processing applications for employment authorization, and (prudently) suspended in-person interviews.
- It will be delayed in issuing receipts for H-1B petitions filed on behalf of noncitizens selected in the recent lottery registration system.
- It will allow copies or scans of wet-ink signatures (but not electronic/digital signatures) on petitions and applications requesting immigration benefits, and still requires that most submissions be sent in paper format with paper checks for filing fees rather than electronically.
- It has modestly extended deadlines for responses to requests for evidence, notices of intent to deny or revoke petitions or terminate EB-5 regional center designations and some Administrative Appeals Office appeals, but only if the issuance date listed on the notice falls between March 1 to July 1.
- It will consider whether to exercise discretion on a case-by-case basis and forgive lapses in immigration status attributable to Covid-19, and in deserving cases, grant an additional 30 days of satisfactory departure, beyond the 30-day period allowed in its regulations, for business visitor and tourist entrants under the visa waiver program who are unable to leave the U.S.
Informal feedback from the DHS and USCIS insiders suggests that the agency is reluctant to grant blanket approval to suspend deadlines in ways that deviate from existing laws and regulations. Presumably, they know that the exercise of blanket authority to confer immigration benefits would undercut the administration’s arguments in the DACA case now before the U.S. Supreme Court.
There, the DHS seeks to affirm its decision to end the program, and DREAMers in health-care professions, battling Covid-19, have recently asked the court to preserve it.
Yet, exercising blanket authority is precisely what USCIS has already done during this pandemic by overriding express compliance deadlines in its regulations. These actions confirm that USCIS knows it has the authority to extend deadlines.
Apropos of the present crisis, Bill Gates once said: “The theory behind the H-1B [visa]—that too many smart people are coming— that’s what’s questionable… It’s very dangerous. You can get this idea that the world is very scary; let’s cut back on travel…let’s cut back on visas.”
Indeed, especially in the face of this vicious pandemic, the world is very scary, and some travel might need to be curtailed. Now, however, is not the time for America to render unlawful, out of status and deportable the very “smart people” already here from abroad who are poised and eager to help us solve the healthcare crisis and redress the economic devastation of the coronavirus.
As the U.S. Census Bureau reminds us, our long term well-being and prosperity depend on the ceaseless strivings of immigrants.