Below are frequently asked questions about issues and options for immigrants, nonimmigrants, undocumented people, and employers of foreign workers during the coronavirus (COVID-19) pandemic.

I heard all immigrants are banned from the United States. Is that true?

  • A presidential proclamation, effective April 23, 2020, suspended the entry of immigrants into the United States for 60 days, with some exceptions.
  • The ban applies to those immigrants who (1) were outside the United States as of April 22; (2) do not have an immigrant visa that is valid on the effective date; and (3) do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) valid on the effective date or issued on any date after the effective date that permits him or her to travel to the United States and seek entry or admission.
  • Excluded from the ban are lawful permanent residents; those seeking to enter the United States as physicians, nurses, or other healthcare professionals, to perform medical or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of, the COVID-19 pandemic; those applying for visas to enter the United States as EB-5 immigrant investors; spouses and children of U.S. citizens; members of the U.S. armed forces; and some others.

I’m a medical professional trying to come to the United States. What are my options?

  • U.S. embassies and consulates will continue to provide emergency and mission-critical visa services “to the extent possible, given resource constraints and local government restrictions.”
  • Medical professionals with an approved U.S. nonimmigrant or immigrant visa petition (I-129 or I-140 with a current priority date, or similar), or a certificate of eligibility in an approved exchange visitor program (DS-2019), particularly those working to treat or mitigate the effects of COVID-19, should review the website of their nearest U.S. embassy or consulate for procedures to request an emergency visa appointment, DOS said.
  • Local government restrictions may limit the ability of some embassies/consulates to process emergency visas now. Applicants’ travel may also be subject to restrictions.
  • For those foreign medical professionals already in the United States, J-1 physicians (medical residents) may consult with their program sponsor, ECFMG, to extend their programs in the United States. Generally, a J-1 program for a foreign medical resident can be extended one year at a time for up to seven years.
  • A new bill (S. 3599) introduced May 5, 2020, in the U.S. Senate would reallocate previously authorized, unused immigrant visas for 25,000 nurses and 15,000 doctors, and family members, to alleviate shortages. The filing period under the bipartisan Healthcare Workforce Resilience Act would be limited to 90 days after termination of the President’s COVID-19 emergency declaration. The bill’s final provisions and passage in the short term remain uncertain, as the House of Representatives is not in session.

I’m a nonimmigrant and unexpectedly have to remain in the United States beyond my authorized period of stay due to COVID-19 issues. What are my options?

  • The Department of Homeland Security (DHS) said it recognizes that such situations may occur during the pandemic. The agency has outlined several options, including applying for an extension of stay, flexibility for late applications, and flexibility for visa waiver entrants.
  • The agency will evaluate on a case-by-case basis any credible evidence submitted to support a request that it consider delays caused by the pandemic.
  • If an emergency (such as COVID-19) prevents the departure of a Visa Waiver Program entrant, USCIS in its discretion may grant a period of “satisfactory departure” for up to 30 days. USCIS can grant an additional 30-day period of satisfactory departure if warranted.

I’m an employer and not able to physically check I-9 documents due to pandemic restrictions. How do I handle this?

  • DHS said it will exercise discretion to defer the physical presence requirements for the
    I-9 process due to the pandemic. Employers must inspect the I-9 Section 2 documents remotely (e.g., over video link, fax, or email) and obtain, inspect, and retain copies of the documents within three business days of hire for purposes of completing Section 2.
  • Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 “Additional Information” field once physical inspection takes place after normal operations resume. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to Section 3 as appropriate.
  • These provisions may be implemented by employers either for a period of 60 days from the date (March 20, 2020) of the DHS notice or within 3 business days after the termination of the National Emergency, whichever comes first. Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee.
  • Employers should monitor the DHS and ICE websites for additional updates on when the extensions will be terminated and normal operations will resume.

Are immigration courts still hearing cases in light of the pandemic?

  • All non-detained hearings scheduled through May 29, 2020, have been postponed, as have Migrant Protection Protocols (MPP) hearings through June 19, 2020. Further postponements remain possible. Individuals and their attorneys can now file by email through temporary email addresses for the Office of the Chief Administrative Hearing Officer, the Board of Immigration Appeals, and the immigration courts nationwide. The operational status for each immigration court (e.g., open, open for detained hearings and filings only, closed) can be found by location using the below link.

Are USCIS offices open during the pandemic? How are responses to agency requests being handled?

  • U.S. Citizenship and Immigration Services (USCIS) plans to begin reopening its offices on or after June 4, 2020, although further postponements are possible. USCIS staff continue to perform duties that do not involve face-to-face contact with the public. However, USCIS will provide emergency services for limited situations.
  • During this time, individuals may still submit applications and petitions to USCIS. The agency said online filing remains the most convenient and interactive way to submit forms, check the status of a case, and receive notices.
  • USCIS domestic offices will send notices to applicants and petitioners whose scheduled appointments and naturalization ceremonies are affected by the temporary closure. Asylum interviews have been automatically cancelled and rescheduled. Asylum applicants will receive a new interview notice once their interview has been rescheduled. Once USCIS offices have reopened, USCIS will reschedule application support appointments and notify individuals of new appointment times by mail. If an individual has an appointment at a field office, he or she must reschedule through the USCIS Contact Center (link below); USCIS will not automatically reschedule appointments at field offices.
  • USCIS has extended flexibility to assist applicants and petitioners responding to certain Requests for Evidence, Notices of Intent to Deny or Revoke, and other agency requests. See information at the link below for details.

Are noncitizens eligible for unemployment insurance in the United States?

  • Noncitizens are generally eligible for unemployment insurance benefits as long as they are: (1) work-authorized at the time they file for unemployment benefits and during the entire time that they are receiving benefits; and (2) meet the state residency requirements for unemployment benefits. These requirements vary from state to state.
  • Receiving unemployment insurance benefits will not count against an individual for public charge purposes because unemployment insurance is an earned benefit and not a public benefit.
    • National Immigration Law Center: “Understanding the Impact of Key Provisions of COVID-19 Relief Bills on Immigrant Communities,”

As a noncitizen, can I receive the $1,200 “stimulus” check that many are receiving to offset economic losses due to the pandemic?

  • The Coronavirus Aid, Relief, and Economic Security (CARES) Act provides a $1,200 rebate to individual taxpayers and a $2,400 rebate for taxpayers filing taxes jointly. Taxpayers must have a Social Security number to receive the rebate. Those who filed a tax return in 2018 or 2019 with a valid Social Security number, and meet certain requirements like income thresholds, will get a rebate in the mail. (The Internal Revenue Service has extended the deadline to file 2019 tax returns to July 15, 2020.) If you have not filed a tax return but receive Social Security benefits, your rebate will be estimated based on your Social Security benefits statement.
  • The CARES tax rebate will not count against an individual in for public charge purposes, as the rebate is a tax credit and not cash assistance.
  • The IRS reportedly sent $1,200 stimulus checks incorrectly to thousands of foreign workers, many living outside of the United States. Many were previously students in the United States and inadvertently e-filed the wrong tax form. In such cases, it is advisable to return the money or file an amended tax return, and keep documentation.

I’m an H-1B worker who has been laid off. Am I entitled to COBRA coverage?

  • A laid-off H-1B worker may be entitled to COBRA benefits for up to 18 months if he or she was working for an insured employer group of 20 or more employees. The worker would need to cover his or her entire premium.
  • Laid-off H-1B workers should consult an experienced insurance agent to learn about their rights.

What are the options for undocumented people who need medical care for coronavirus (COVID-19) treatment?

  • Under federal law, state Medicaid programs must treat individuals suffering from emergency medical conditions who are not lawfully present in the United States. An “emergency medical condition” means that the absence of immediate medical attention could put the patient in serious jeopardy, impair bodily functions, or cause serious dysfunction to an organ or body part. To qualify in New York, a person must be a New York resident, financially eligible for Medicaid, and have an emergency medical condition.
  • Receipt of emergency Medicaid will not count against an undocumented person in “public charge” determinations.
  • Undocumented people, and others, can also go to free or low-cost clinics.
  • Undocumented people cannot purchase private health insurance through the Affordable Care Act (ACA) marketplaces. Some may access private health insurance as a spouse or dependent of someone who receives health insurance through his or her employer. Those who are students may receive health insurance through their schools. Undocumented persons can purchase private health insurance outside of the ACA marketplace.
  • For those worried about U.S. Customs and Immigration Enforcement (ICE) coming to hospitals, the Department of Homeland Security (DHS) has internal policy guidelines that recognize schools, medical treatment and health care facilities, places of worship, religious or civil ceremonies, and public demonstrations as “sensitive locations.” According to these internal guidelines, ICE should limit or avoid immigration enforcement in such locations. This is only internal agency guidance and not federal law, however. While it is possible that ICE will come to a hospital, it is unlikely.
  • ICE said that temporarily, its Enforcement and Removal Operations will focus on “public safety risks and individuals subject to mandatory detention based on criminal grounds.” For those who do not fall into these categories, the agency said it will “exercise discretion to delay enforcement actions until after the [pandemic] crisis or utilize alternatives to detention, as appropriate.” ICE said it will not carry out enforcement operations at or near health care facilities “except in the most extraordinary of circumstances.”

What about Medicaid use for immigrants who have legal status and need medical care for COVID-19 treatment?

  • Many lawful noncitizens must be present in the United States for five years before they can access Medicaid. However, refugees, asylees, and lawful permanent residents (green card holders) do not necessarily need to wait five years. States have the option of waiving the five-year period for pregnant women (Medicaid) and children (Children’s Health Insurance Program, or CHIP). For example, New York has waived the five-year waiting period for pregnant women and children.
  • Accessing Medicaid ordinarily is a negative factor in “public charge” determinations, with the exception of children under 21 and pregnant women. However, U.S. Citizenship and Immigration Services has announced that it will not consider coronavirus testing, treatment, or preventive care (such as a vaccine if one becomes available) as part of the public charge determination, even if paid for by Medicaid.
  • Those who previously had health insurance through an employer with at least 20 employees but lost their jobs due to coronavirus have the option of keeping the same health insurance for a period of time through COBRA (Consolidated Budget Reconciliation Act), although they must pay the entire premium.
  • Losing a job is considered a “qualifying event” to enroll in a plan on all ACA marketplaces. Some states (including New York) have created special enrollment periods in light of the pandemic so uninsured people can enroll in an ACA insurance plan without a qualifying event, although the federal government has not expanded the enrollment period on

Can individuals with DACA (Deferred Action for Childhood Arrivals) access Medicaid, insurance through the ACA marketplaces, or private health insurance through an employer?

  • DACA recipients are not eligible for normal Medicaid and cannot purchase private health insurance coverage through the ACA marketplaces. However, because DACA recipients have work authorization, they can access employer-provided private health insurance.
  • DACA recipients can access emergency Medicaid if they meet the income requirements for Medicaid and arrive at a hospital suffering from an emergency medical condition (meaning that the absence of immediate medical attention could put the patient in serious jeopardy, impair bodily functions, or cause serious dysfunction to an organ or body part).

Will applying for rental assistance, Section 8 or other housing benefits, cash assistance or food stamps for their children during the pandemic count against a noncitizen during a public charge determination?

  • Generally, applicants can apply for food stamps for their children. This is permitted because children’s benefit use is not to be considered in a public charge determination.
  • Although USCIS has not explicitly stated how the use of benefits such as Section 8 housing and other housing assistance, rental assistance, or cash assistance would affect a public charge determination, the option to submit additional documentation during the COVID-19 crisis suggests immigration officers may take the unprecedented nature of the pandemic into account when making a public charge determination.
  • The use of two benefits in a month (like Section 8 housing and SNAP in April 2020) would count as two months of benefits.

How is the spread of the coronavirus being handled in immigration detention centers?

  • According to a statement from U.S. Customs and Immigration Enforcement (ICE), ICE is reviewing CDC (Center for Disease Control) guidance daily and updates its protocol based on the CDC guidance. ICE evaluates detainees based on CDC protocol to determine if individuals with symptoms need to be tested or isolated, or transported to hospitals, or if those with a higher risk of severe illness as a result of COVID-19 should continue to be detained. ICE said it has temporarily suspended social visitation at detention centers and has increased detainee access to videoconferencing, telephone, and email. In-person attorney visitation is allowed if the attorney determines that in-person visitation is essential, but the attorney must undergo the same screening as required for staff entry into the facility.
  • Litigation is ongoing to try to get immigrant detainees released. Immigration advocates are also filing humanitarian parole requests.

For advice in specific situations, contact your Miller Mayer attorney.