A. Evolving U.S. Immigration Practice and Strategies to the COVID-19 Pandemic

U.S. Embassies and Consulates around the world suspended nonimmigrant and immigrant visa processing, generally remaining open only for emergency U.S. Citizen Services. Visa applicants outside of the United States may expect to wait months and possibly until this pandemic ends before they can apply for visas to travel to the U.S. This suspension of services will likely create substantial backlogs. As a result, immigration attorneys are changing course on immigration strategies that involve consular visa applications in favor of in-country extensions of stay with U.S. Citizenship and Immigration Services (USCIS) whenever possible. For certain work visa categories, the filing of a nonimmigrant petition with USCIS before the person’s status expires automatically extends work authorization for up to 240 days. 

The U.S. and many other countries implemented travel bans and restrictions, such as India whose total lockdown and travel ban includes its own citizens. International flights have been cancelled. F-1 students may not be able to return home after school ends, and B-1/B-2 visitors may find their flights cancelled and may need to file extensions of stay to maintain compliance with U.S. immigration laws. Foster maintains and updates a COVID-19 Immigration Impact document for over 60 countries’ responses to the pandemic. 

USCIS has suspended public-facing services and appointments as well as premium processing services for immigrant and nonimmigrant petitions. The U.S. Department of Homeland Security (DHS), which includes USCIS, has provided flexibility to employers in completing Forms I-9 and responding to audits and will accept reproduced original signatures in petitions or applications for immigration benefits. USCIS also recently announced that responses to requests for additional evidence (RFEs) and notices of intent to deny (NOIDs) issued between March 1 – May 1, 2020, may be received and reviewed up to 60 days after the expiration date noted in the RFE or NOID.

Working from home has been recommended or required, and the U.S. Department of Labor granted a 30-day grace period for certain H-1B and E-3 posting requirements. Foster published guidance on Telecommuting as Precaution Against COVID-19. 

Furloughs and layoffs are occurring. Furloughs may impact the maintenance of nonimmigrant status for an employee, and an employer may still be required to pay nonimmigrant workers, such as H-1B and E-3 visa holders, even if furloughed. In the case of termination, employers of nonimmigrant workers should take the necessary steps to notify the appropriate agencies. Certain nonimmigrant visa holders may find a new sponsor and change employers from within the United States, whereas others may need to depart the United States. 

B. Impact of Public Charge Rule on Coronavirus Stimulus Package

The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) includes stimulus payments and an expansion of unemployment benefits, which may be sought by nonimmigrant visa holders in the United States. 

1. Certain Nonimmigrant Visa Holders Qualify for Stimulus Payments But May Implicate Public Charge Rule

Nonimmigrant visa holders who file a U.S. income tax return as a resident alien may qualify for stimulus payments for themselves and dependents claimed on their tax returns.  Stimulus payments may not be received by “nonresident aliens,” which is defined by the Internal Revenue Service (IRS) for tax purposes as “an alien who has not passed the green card test or the substantial presence test.” Certain nonimmigrant visa holders who have not filed a U.S. income tax return yet may also meet the substantial presence test and are recommended to contact their tax advisors to determine qualification. 

A separate question exists whether or not receipt of these benefits would render them inadmissible to the United States on “public charge” grounds.  According to Chapter 10 of the USCIS Policy Manual, USCIS considers for purposes of the public charge determination “any other federal, state, and local tribal cash assistance for income maintenance (other than tax credits).”  Although the stimulus payments would appear to be “cash assistance for income maintenance,” the Internal Revenue Service (IRS) considers these economic impact payments to be tax credits and therefore excluded from public charge consideration.  The Congressional Research Service (CRS) recently released a report confirming the same.

2. Unemployment Benefits Elusive for Most Work Visa Holders

Unemployment insurance programs are administered by the individual states and are subject to individual interpretations of program requirements.  Generally speaking, most states require applicants to be immediately able and available for work in any suitable full-time employment opportunity.  Because most work visa holders are only authorized to work for the specific petitioning employer that terminated their employment, typically they are unable to meet these prerequisites for qualifying for unemployment benefits. 

An Employment Authorization Document (EAD) holder, such as an L-2 spouse with an EAD card, is an example of a nonimmigrant visa holder who has “free market” work authorization and could potentially demonstrate ability and availability to work in any suitable full-time employment opportunity.  Such EAD holders may meet the eligibility requirements for unemployment benefits if they are maintaining their lawful immigration status. 

Please refer to Foster’s Immigration Update© on CARES Act Stimulus Payments and Unemployment Benefits Do Not Implicate Public Charge Rule for more information. 

3. USCIS Separately Confirmed Seeking Treatment for COVID-19 Will Not Negatively Impact Public Charge Analysis

Additionally, in an alert on its website, USCIS stated that it “encourages all those, including aliens, with symptoms that resemble Coronavirus 2019 (COVID-19) (fever, cough, shortness of breath) to seek necessary medical treatment or preventive services. Such treatment or preventive services will not negatively affect any alien as part of a future Public Charge analysis.”

Updates in U.S. immigration as well as the immigration systems of over 60 countries may be found as a result of the coronavirus/COVID-19 pandemic may be found here, and more information about the recently implemented Public Charge Rule and ground for inadmissibility may be found in a recent Foster Immigration Update©.