U.S. Citizenship and Immigration Services sent its plans to hike immigration application fees and charge for asylum requests to the White House on Wednesday, paving the way for the higher fees to soon take effect during the COVID-19 pandemic.
U.S. Citizenship and Immigration Services (USCIS) will reopen some domestic offices to resume non-emergency services on June 4, 2020. USCIS suspended routine in-person services on March 18, 2020, in response to the COVID-19 pandemic.
Previously scheduled appointments, interviews, and naturalization ceremonies that USCIS canceled will be automatically rescheduled. Individuals will receive a new appointment letter in the mail from USCIS that outlines new safety requirements in accordance with guidelines provided by the U.S. Centers for Disease Control and Prevention. USCIS has announced that offices will offer a reduced number of appointments and interviews to help ensure social distancing, allow time for cleaning, and reduce waiting room occupancy.
USCIS released more information regarding individual offices on its website.
U.S. Citizenship and Immigration Services issued temporary policy changes regarding the full-time work requirement for foreign medical graduates and the provision of telehealth services by those foreign medical graduates in light of the evolving COVID-19 pandemic.
Foreign medical graduates who are present in the United States as J-1 exchange visitors are subject to a two-year foreign residence requirement under the Immigration and Nationality Act. The law requires them to return to their home country for at least two years in the aggregate before being eligible to apply for an immigrant visa (permanent residence) or certain nonimmigrant visas (e.g., H-1B). The purpose of the requirement is to ensure that exchange visitors adhere to the nature of the exchange program and return home to share the knowledge gained in the U.S. with their home country. However, provisions are available for waivers of the two-year foreign residence requirement, including but not limited to foreign medical graduates who consent to work full-time for at least three years in a shortage area designated by the U.S. Department of Health and Human Services (HHS) with a recommendation from an IGA or state agency of public health or its equivalent, or with the Department of Veterans Affairs (VA).
Full-Time Work Requirement
The failure of a foreign medical graduate to work full-time (40 hours per week) with the health facility or health care organization named in their waiver application will generally result in the re-imposition of the two-year home residence requirement. This has raised various concerns as many foreign medical graduates are temporarily unable to work full-time due to quarantine, illness, travel restrictions, or other consequences of the pandemic.
USCIS announced that effective Jan. 27 through the end of the Public Health Emergency, USCIS officers will not consider a failure to work full-time to be a failure to fulfill the terms of the waiver contract, as a matter of policy. This policy is only applicable to foreign medical graduates' eligibility to apply for future immigration benefits that would be affected by the two-year residency requirement.
USCIS announced that effective May 11 through the end of the Public Health Emergency, the agency broadly interprets current regulations to allow foreign medical graduates currently employed by an IGA or through the Conrad State 30 program to provide telehealth services during the Public Health Emergency. These graduates can practice only through their contracting facility located in an HHS-designated shortage area, or through their contracting facility that serves patients who reside in such a designated area (FLEX 10), with exceptions for those working for the VA. Employers should be aware that if they choose to offer telework options to foreign medical graduates, they must offer the same flexibilities to its U.S. workers that are similarly employed.
• USCIS will furlough employees if it does not get funding. USCIS has requested emergency funding from Congress to sustain its operations. The agency has said that if it does not get funding, it will administratively furlough some employees starting around July 20. In addition to funding in the next coronavirus relief bill, USCIS has suggested fee hikes of 10% to compensate for the decrease in applications over the last few years. USCIS has 19,000 employees and contractors at more than 200 offices.
• DHS has exempted some foreign athletes from travel restrictions. Amid the coronavirus pandemic, the Trump administration has enacted restrictions on travel into the United States. On May 22, acting DHS Secretary Wolf signed an exemption to these restrictions for certain foreign athletes competing in events in the U.S. Acting Secretary Wolf cited the economic benefits that sporting events provide as well as “community pride” as reasons for the exemption. DHS will work with sporting groups to identify the particular athletes, coaches, and staff that will be covered by the exemption.
• The Trump administration is expected to broaden foreign worker bans. The Trump administration has been looking into expanded foreign worker bans ostensibly in response to the COVID-19 pandemic. The expected change would expand an existing executive order to include more categories of barred foreign workers. The Trump administration is also considering limiting the number of people who come to the U.S on cultural exchanges, such as with summer camps and resorts. It is also looking into lowering the number of visas for specialty occupations and certain categories of seasonal workers. In response to this possibility, some Republican senators have urged President Trump not to restrict visas for seasonal workers because of their importance in many industries. Any new or existing executive orders related to immigration are expected to be extended on a 30 or 60-day basis.
On March 24, 2020, two notices (Notices) were published in the Federal Register by United States (U.S.) Customs and Border Protection (CBP) related to limitations on cross-border travel along the northern and southern borders of the U.S. Both of these restrictions went into effect as 11:59 p.m. (EDT) on March 20, 2020, and remained in effect until 11:59 p.m. (EDT) on April 20, 2020. The Notices announced restrictions to “non-essential” travel between the countries (U.S. and Mexico – U.S. and Canada) and outlined what constitutes essential travel for admission to the U.S. These restrictions have now been extended twice and currently expire at 11:59 p.m. (EDT) on June 22, 2020, unless amended or rescinded. The restrictions are not meant to interrupt legitimate trade between the affected nations or disrupt critical supply chains that ensure delivery of food, fuel, medicine, and other critical materials.
Below are references to the notices issued to date:
- U.S.-Canada Border Federal Register Notice (Initial 85 Fed. Reg. 16548) | 30-Day Extension Notice 1 at 85 FR 22352 (April 22, 2020) | 30-Day Extension Notice 2 at 85 Fed. Reg. 31059 (May 22, 2020)
- U.S.-Mexico Border Federal Register Notice (Initial 85 Fed. Reg, 16547) | 30-Day Extension Notice 1 at 85 FR 22353 (April 22, 2020) | 30-Day Extension Notice 2 at 85 Fed. Reg. 31057 (May 22, 2020)
What modes of travel are NOT affected by these notices?
Canada – Air, Freight, Rail, or Sea Travel between the U.S. and Canada. Mexico – Air, Freight, Rail, or Sea Travel between the U.S. and Mexico.
What modes of travel are affected by these notices?
Canada and Mexico – Land, passenger rail, passenger ferry travel, and pleasure boat travel.
What travel is restricted by these notices (e.g., Non-Essential)?
Individuals traveling for tourism (e.g. sightseeing, recreation, gambling, and attending cultural events), which is typically referred to as B-2 admissions to the U.S. Please note that B-1 business visits are not included in the non-essential category. In addition, the CBP Commissioner may on an individualized basis and for humanitarian reasons or for other purposes in the national interest, permit the processing of travelers to the U.S., who are not engaged in essential travel.
What travel is allowed as “Essential”?
For purposes of the temporary alteration in certain designated ports of entry operations authorized under 19 U.S.C. §1318(b)(1)(C) and (b)(2), travel through the land ports of entry and ferry terminals along the U.S.-Mexico or U.S.-Canadian border shall be limited to “essential travel,” which includes, but is not limited to —
- U.S. citizens and lawful permanent residents returning to the U.S.;
- Individuals traveling for medical purposes (e.g., to receive medical treatment in the U.S.);
- Individuals traveling to attend educational institutions (It is unclear if this provision applies to students studying online due to COVID-19 related practices applied by their educational institutions.);
- Individuals traveling to work in the U.S. (e.g., individuals working in the farming or agriculture industry who must travel between the U.S. and Mexico in furtherance of such work);
- Individuals traveling for emergency response and public health purposes (e.g., government officials or emergency responders entering the U.S. to support Federal, state, local, tribal, or territorial government efforts to respond to COVID-19 or other emergencies);
- Individuals engaged in lawful cross-border trade (e.g., truck drivers supporting the movement of cargo between the U.S. and Mexico);
- Individuals engaged in official government travel or diplomatic travel;
- Members of the U.S. Armed Forces, and the spouses and children of members of the U.S. Armed Forces, returning to the U.S.; and
- Individuals engaged in military-related travel or operations.
Please also review the earlier blog on this issue by Elise Levasseur of Dickinson Wright for more background.
On March 20, 2020, the U.S. and Mexico as well as the U.S. and Canada issued joint statements regarding their joint efforts to prevent the spread of COVID-19. Canada and Mexican travel restrictions regarding non-essential travel were also extended to June 22, 2020. U.S. citizens and dual nationals living abroad are not subject to these restrictions to return to the U.S.
What about nonimmigrant visa holders [e.g., L-1, Trade Nafta (TN), H-1B, E, etc.) traveling to the U.S. to work?
The Canadian government was the first to clarify the application of the essential worker term to work authorized nonimmigrants. On March 20, a clarification was posted that, “Exemptions to the air travel restrictions will apply to foreign nationals who have already committed to working, studying or making Canada their home, and travel by these individuals will be considered essential travel for land border restrictions.” So far, U.S. CBP officials continue to process the admission of nonimmigrant visa holders for TN status at the northern and southern borders for Canadian citizens and for Canadian L-1 initial visa applicants at the northern border.
Processing of Mexican TN visas has basically been placed on hold due to the ongoing suspension of visa services at U.S. consular posts in Mexico, except in urgent humanitarian circumstances. In some cases, medical professionals have been able to schedule emergency appointments for immigrant and nonimmigrant visas. The U.S. Department of State has encouraged nonimmigrant and immigrant medical professionals to review the website of their nearest U.S. embassy or consulate for procedures to request emergency visa appointments. Please note that the Department of State has indicated that those nonimmigrant visa holders in the U.S., who need to extend or adjust their visa status, must apply in the U.S. with U.S. Citizenship and Immigration Services (USCIS).
Please remember that we expect a report to be provided to President Trump soon (May 23) regarding potential restrictions to be placed on nonimmigrant visas based on his prior immigrant visa suspension proclamation outlined here.
It is important to remember that a nonimmigrant visa issued by the Department of State does not determine how long the nonimmigrant visa holder may remain legally in the U.S. The period of admission/authorized stay is set by the I-94 admission record, which may be found after admission at the CBP website, on a separate I-94 paper card issued at a land border port of entry, on an admission stamp in a passport from a CBP officer, or at the bottom of an I-797 approval notice from USCIS depending on timing and the application process used.
What about potential quarantines after admission to the U.S., Canada, or Mexico?
In the U.S., quarantine requirements depend on state and local policies. For those applicable in Canada or Mexico, the Department of State and its embassy websites provide useful resources. CBP, at the link below, outlines travel restrictions and updates to COVID-19 related policies and actions. In addition, The New York Times provides a helpful list of state shelter in place and reopening orders, while the National Conference of State Legislatures provides COVID-19 related policies and legislation state-by-state.