Can I Still File My Immigration Case During COVID-19 and Despite Trump’s Executive Order?
Is US CIS Still Processing Cases? If I Do File, Will Processing of My Case be Delayed?
COVID-19 and President Trump have not frozen US immigration. You can still file the following US immigration cases during COVID-19 and despite Trump’s April 22 Executive Order if you are eligible and a qualified and experienced immigration attorney advises it is a good idea. In many situations, filing now will save you waiting time because immigration processes cases in the order they are received. We expect a bubble of filings in late summer and early fall, so best to get in line before then.
FAQ’s Re-Impact of COVID-19 And Trump’s April 22 Executive Order On US Immigration Cases
Will immigration stop processing cases?
USCIS is still accepting filings and processing cases. Some in-person appointments have been temporarily halted, but US CIS can still complete all or most of its case processing without in-person appointments.
Did Trump freeze US immigration?
No. The April 22 Executive Order only pauses for 60 days the entry of people waiting outside the US for immigrant visas (not temporary, i.e. non-immigrant visas). The order also contains some exemptions. It is possible this order could get extended.
This order only applies to those who are outside the US on the date of the order (4/22/2020) awaiting an immigrant visa to enter the US. An immigrant visa issued via a consulate abroad (rather than in the US) allows the visa – holder admission to the US as a lawful permanent resident (i.e. green card recipient). The order includes both family and employment-based immigrant visa holders with some exceptions (see below).
Because it only applies to immigrant visas, the order does not include those with advance parole documents or non-immigrant (i.e. temporary) visas (e.g. B-1, B-2, F-1, H-1, H-2, O-1, L-1, E-1, E-2, TN). However, the order does mention that within 30 days the President will consult with the Departments of Labor and Homeland Security to see if changes in the non-immigrant processes are needed. Even though non-immigrants were excluded from this order, there may be future changes in store for non-immigrants.
Who is exempted from President Trump’s April 22nd order?
The order exempts:
- Lawful Permanent Residents (conditional and unconditional)
- Certain healthcare professionals and researchers and their spouses and children under 21
- Investor Green Card cases
- Spouses of US citizens
- Children of US citizens under 21 and some prospective adoptees of US citizens
- Members of the US Armed Forces and their spouses and children
- Certain individuals needed for US law enforcement purposes or the national interest
- Certain Special Immigrant Visas including spouses and children
Will case processing slow down?
Possibly. On the one hand, we see some case processes speeding up, possibly because the officers who do in-person processing may be helping with backlogs. On the other hand, cases that require in-person interviews or fingerprints will likely be delayed unless USCIS starts waiving some interviews. If your appointment was canceled due to COVID-19, your case is delayed. However, you will receive a new reschedule notice eventually. Make sure USCIS has your current address. If you move, you must file a change of address (Form AR-11) with USCIS via their website or by mail so you do not miss any important communication from USCIS regarding your case.
Do not delay your case filing if you have a deadline. US CIS is not extending all deadlines. Also, keep in mind there may be fewer people filing immigration cases at the moment, so this may have a positive effect for people filing their cases now to avoid the likely bubble of filings as life begins to get back to normal.
Consular processing will likely move slower because of consulate closures and a smaller NVC staff operating currently. However, they are still processing cases, but inquiries are getting a slow response. Also, the President’s April 22 Executive Order is likely to further slow most green card cases processed at consulates abroad. This does not mean that you should hold off on filing your case. If you delay your filing, it will only take longer because immigration cases are processed in the order they are received. In other words, put your case in line by filing now to minimize the negative impact that COVID-19 and Trump’s order will have on these cases.
For most cases, work permit renewals will involve reusing prior prints rather than a new appointment. This may help avoid delays in processing work permit applications.
What do I do if I am on a work visa and lose my job?
Most work visas have a 60-day grace period when employment ends, as long as there is 60 days or more left of status. You can use this time to switch employers or change status to visitor or other status if you do not want to or cannot depart the US.
Why did US CIS stop premium processing?
USCIS was concerned it could not meet the 15 days response time for expedited cases during coronavirus so they have temporarily suspended this service. Applicants can request an expedite if they have a good faith emergency for pushing in front of the line and have proof of that emergency. USCIS may be more generous for expedite requests given the lack of premium processing, as they have indicated in the past when premium processing has been halted.
For extensions of most work visas (not work permits), there is a 240-day extension of employment authorization after the I-94 expires. Nearing the end of this period might be a good reason to request an expedite depending on the circumstances.
Will my work permit be delayed?
Some work permit renewal filings will give a 180-day work authorization extension if filed on time – check the US CIS website to see if this applies to your work permit renewal. We expect initial filings with no fingerprints on file with USCIS to be delayed. Renewals, though, might not be delayed because USCIS says they will reuse prior fingerprints.
Will US CIS extend deadlines for people with upcoming visa expirations?
You still have to meet your deadlines. Some deadlines (RFE’s, NOID’s, NOIR’s, NOIT’s issued between March 1, 2020, and July 1, 2020) or appealable decisions (Form I-290B within the AAO jurisdiction) are being given a 60-day grace period. But not all deadlines have an extension. It is important to document any impact of coronavirus on your situation because USCIS says they are trying to be flexible, but be sure to speak promptly with an attorney about any deadline you have.
When will the consulates restart visa appointments?
Currently US consulates say they do not know when processing will resume. If there is an emergency, contact the consulate. You can check the consulate’s webpage for updates.
What should I do if I am visiting the US but cannot travel home yet?
If possible, you should file an I-539 extension before the expiration of your I-94. US CIS has indicated they will take into consideration a late filing related to COVID-19 if the late filing is reasonable under the circumstances. If you were admitted on an ESTA/Visa waiver though, an I-539 extension of stay is not possible. But you may be able to request something called ‘Satisfactory Departure’ from CBP for a short extension of time.
What if I am a Lawful Permanent Resident and I cannot return to the United States?
Lawful Permanent Residents who are stranded outside the US should keep evidence of why they cannot safely return. Examples of helpful evidence include doctor letters regarding safety of travel (especially noting any heightened risk factors), official travel restriction announcements, and flight cancellations. If you are approaching one year out of the US (without a reentry permit previously requested), contact an attorney to help you. Lawful permanent residents outside the US for a year or longer will require a returning resident visa.
What if I sponsored my family member but I lost my job? Will my financial sponsorship be deemed insufficient?
Your family member might still be approved depending on the circumstances and strength of your financial sponsorship package, self-sufficiency filing, and other factors. A joint sponsor might help as well. Documenting your skills and that the loss was directly COVID-19 related may help. Other factors, such as tax history, developing skills during a layoff / furlough, letter from employer, and existence of insurance may help. A good attorney makes all the difference here. There are a lot of other factors USCIS considers, so hire an experienced immigration lawyer to help you document those factors for the strongest possible case.
Make good use of the time you are unemployed if you are sponsoring a family member – learn skills, get certifications online, make a plan for how you will get a new job, find temporary work, collect reference letters. All these things will help.
Will taking unemployment benefits or other public health benefits affect my immigration case with US CIS?
Unemployment benefits eligibility varies state by state. Unemployment benefits are not a basis to deny a green card under the new public charge rules, but you do have to disclose the benefits. We think USCIS will consider the emergency situation of COVID-19 if the unemployment is COVID-related. However, having a very strong self-sufficiency and financial sponsorship package will make or break a case so get help from a good attorney here.
To apply for unemployment assistance in Georgia, you must be lawfully present in the US. A US CIS – issued employment authorization document should serve as proof of lawful status (it is listed as a document they consider).
If you have a pending green card, you will need to disclose the use of this benefit at your I-485 interview, but unemployment is permitted under the new public charge rules.
If you have a work-based green card application, US CIS should consider the COVID-19 circumstances in deciding your case. Submitting documentation that that your job would be available to you when you receive your green card will help. Sometimes you may be able to port to another employer under portability rules.
Can immigrants receive stimulus money?
Some immigrant and mixed status families will not receive stimulus money. If your tax return lists a person, spouse or child without a social security number (and many undocumented and documented immigrants are not eligible for social security numbers), the family is not entitled to stimulus money under the CARES Act.
Will COVID-19 testing, treatment or preventative care hurt my immigration application under the public charge rule?
No. US CIS announced that neither testing, treatment, nor preventative care that is related to COVID-19 will be considered unfavorably under the new public charge rules. This includes a COVID-19 vaccine if it becomes available. This applies even if the treatment is provided or paid for by public benefits (such as federally funded Medicaid). Therefore, US CIS has explicitly stated that accessing COVID-19 health services will not negatively affect immigration cases. While US Department of State has not commented on this yet, we do not think that obtaining COVID-19 treatment or testing will hurt cases that are processed at consulates.
Will receiving a recovery rebate under the CARES Act negatively impact my immigration application under the public charge rule?
No. These rebates are structured through the IRS as tax credits. The DHS final rule on inadmissibility on public charge grounds excludes tax credits. DHS indicates in its final rule that only public benefits as defined in 8 CFR § 212.21(b) will be considered in the new public charge rules. 8 CFR § 212.21(b) defines a public benefit to include means-tested programs like Medicaid and cash assistance for income maintenance. However, 8 CFR § 212.21(b) indicates that cash assistance for income maintenance does not include tax credits. Furthermore, US CIS indicates in its policy manual that tax credits are not considered public benefits in a public charge determinations.
We understand that these are stressful times. Focus on what you can control and educate yourself. Our office is open, and we are here for you. Call us at 404-850-9394 or contact us online.
Nisha K. Karnani was born in the United Kingdom to Indian parents and immigrated to the United States as a child. She earned her Bachelor of Arts with Honors in Economics from the University of North Carolina in 1998 and her Juris Doctor from the University of North Carolina School of Law in 2001.
Ms. Karnani has practiced immigration law exclusively since being admitted to the Georgia Bar in 2001. She was an Associate Attorney with Cohen & Associates beginning in 2001, a firm which merged and became the Antonini & Cohen Immigration Law Group in 2013. As a Partner at Antonini and Cohen, Ms. Karnani represents clients in employment and family immigration on issues. She also represents victims of domestic violence and other crimes in various immigration matters.