The COVID-19 (the novel coronavirus) pandemic, and the related federal response, disrupted virtually every aspect of the U.S. immigration system. Visa processing overseas by the Department of State, as well as the processing of some immigration benefits within the country by U.S. Citizenship and Immigration Services (USCIS), have come to a near standstill. Entry into the United States along the Mexican and Canadian borders—including by asylum seekers and unaccompanied children—has been severely restricted. Immigration enforcement actions in the interior of the country have been curtailed, although they have not stopped entirely. Tens of thousands of people remain in immigration detention despite the high risk of COVID-19 transmission in crowded jails, prisons, and detention centers that U.S. Immigration and Customs Enforcement (ICE) uses to hold noncitizens. The pandemic led to the suspension of many immigration court hearings and limited the functioning of the few courts which remain open or were reopened. Meanwhile, Congress left millions of immigrants and their families out of legislative relief, leaving many people struggling to stay afloat in a time of economic uncertainty.
This report seeks to provide a comprehensive overview of the impact of COVID-19 across the immigration system in the United States. Given that the landscape of immigration policy is changing rapidly in the face of the pandemic, this report will be updated as needed.
The Effect of COVID-19 on Immigrants and Nonimmigrants Abroad
The COVID-19 pandemic profoundly impacted the ability of foreign nationals to travel to the United States in any status. Beginning in February 2020, the Trump administration has imposed five separate travel restrictions on individuals who had been present in certain countries where COVID-19 epidemics were occurring. As the pandemic spread, on March 20, 2020 the Department of State suspended “routine visa services” at all embassies and consulates worldwide, including cancelling all “immigrant and nonimmigrant visa appointments.” This suspension encompasses applicants for both employment-based and family-based immigrant visas, including the relatives of U.S. citizens and lawful permanent residents (LPRs), as well as applicants for nonimmigrant visas for visitors, students, and skilled workers. However, the State Department has continued to process all H-2 visa cases, which includes temporary agricultural workers, and allows for emergency visa appointments. The worldwide suspension remained until mid-July, after which some consulates began to slowly reopen.
The pandemic also led to new barriers on legal immigration. The Trump administration implemented a proclamation, effective April 24, 2020 and lasting through at least December 31, 2020, that suspends the entry of certain immigrants, with the stated purpose of preserving employment opportunities for U.S. citizens affected by the economic impact of the pandemic. On June 24, the ban was extended to include a prohibition on entry in certain employment-based nonimmigrant visa categories.
Analysis and Recommendations: The United States should work to remove the red tape that makes it difficult for many medical professionals to move to the United States and contribute their talents. In addition, the ban on most new immigrants and nonimmigrants should be terminated, as it is a thinly veiled attempt to implement drastic changes to our immigration system and not a genuine attempt to help American workers.
The Effect of COVID-19 on Immigration Processing at U.S. Land Borders
On March 20, 2020, the United States reached joint agreements with the governments of Canada and Mexico to suspend “non-essential” travel through ports of entry on each border. On the same day, the Department of Health and Human Services (HHS) issued an emergency regulation which permits the Director of the Centers for Disease Control (CDC) to “prohibit … the introduction” of individuals when the Director believes that “there is serious danger of the introduction of [a communicable] disease into the United States.” Citing the new CDC authority, the Border Patrol began “expelling” individuals who arrive at the U.S.-Mexico border, without giving them the opportunity to seek asylum. Through the end of August, over 147,000 people have been “expelled” at the southern border. In addition, all “Migrant Protection Protocols” (MPP) hearings at the border for asylum seekers sent to Mexico have been suspended indefinitely until the pandemic abates significantly, leaving more than 20,000 people stranded in Mexico or forced to abandon their cases and return home.
Analysis and Recommendations: Suspending all processing of asylum seekers in this manner is likely a violation of international and domestic law. U.S. Customs and Border Protection (CBP) should immediately develop plans to administer appropriate screenings at the border for asylum seekers and unaccompanied children, allowing for the safe processing of all individuals in a way that protects the vulnerable, while preventing the spread of the coronavirus. CBP should also parole all individuals in MPP proceedings into the United States.
The Effect of COVID-19 on Immigration Processing Inside the United States
USCIS suspended all in-person services at its offices for the first three months of the pandemic, before beginning a slow reopening process in certain locations. As a result, interviews for all immigration benefit applications and asylum applications were postponed and will be rescheduled when normal operations resume. USCIS also temporarily suspended all biometrics appointments, meaning that new fingerprints could not be taken. In addition, the agency temporarily suspended naturalization oath ceremonies through June, resisting video oath ceremonies and instead instituting socially distant in-person oath ceremonies and drive-through oath ceremonies. This delayed the ability of tens of thousands of immigrants to become U.S. citizens. The agency has also made a number of technical changes to the H-2A and H-2B processes that make it easier for noncitizens who are working to keep the nation’s food supply stable to remain in the United States for the duration of the national emergency.
However, the agency has resisted calls to grant automatic status extensions or otherwise make changes which would prevent foreign nationals from inadvertently losing status during the national emergency declared by the president on March 13, 2020. In addition, the agency announced that due to reduced fees resulting in part from the pandemic, it would run out of money to meet its expenses and that it would have to furlough 13,400 employees. While the agency ultimately cancelled its planned furloughs, it nevertheless announced that it anticipated that operational reductions would significantly impact its day-to-day operations.
Analysis and Recommendations: Despite the extraordinary set of circumstances presented by the pandemic, USCIS has not issued broad policy changes that would enable noncitizens to focus on their well-being rather than their immigration paperwork. USCIS should suspend all filing deadlines and extend all nonimmigrant statuses for at least 90 days beyond the duration of the COVID-19 national emergency. The agency should also administer oath ceremonies online to approved naturalization candidates. Congress should also ensure that any emergency funding provided to USCIS is conditioned upon significant accountability measures.
The Effect of COVID-19 on Immigration Enforcement and Detention Inside the United States
The arrival of the coronavirus in the United States posed an immediate threat to detained individuals and individuals working in detention facilities. Unlike people living outside of detention centers, those in detention centers cannot socially distance from others, as they are locked inside facilities with hundreds of other people. People in detention have limited access to soap and often must pay for hand sanitizer. Face masks are difficult to obtain or simply not distributed at all. The risk of the virus spreading to additional ICE detention centers is exacerbated by the agency’s practice of routinely transferring people from one detention center to another, often multiple times. At least eight people have died after contracting COVID-19 while detained and over 6,000 people have tested positive in ICE detention since the pandemic began.
In response to the coronavirus pandemic, ICE limited its enforcement actions throughout the United States. While the agency did not fully suspend arrests, it promised to “temporarily adjust its enforcement posture” beginning on March 18, 2020, by “focus[ing] enforcement on public safety risks and individuals subject to mandatory detention based on criminal grounds.” The effect of ICE’s limited enforcement became quickly apparent, with the agency sending fewer people to ICE detention centers in the weeks after the change in policy.
Analysis and Recommendations: ICE should use its broad authority to parole people and release them on alternatives to detention to the widest extent possible while their immigration court proceedings continue. For those who remain detained, telephonic access to one’s attorneys and family members should be robust. In addition, despite a drop in immigration enforcement inside the United States, ICE has continued to deport people to countries around the world, even though this threatens to further spread the coronavirus. ICE should limit enforcement actions that put communities at heightened risk due to COVID-19 by implementing meaningful enforcement priorities.
The Effect of COVID-19 on the Immigration Court System
As the pandemic spread throughout the United States, the immigration court system responded slowly. It was not until March 16 that the Executive Office for Immigration Review (EOIR) postponed large “master calendar hearings” nationwide. Despite suspending all non-detained immigration court hearings through June, EOIR has not suspended all other hearings. Hearings continue for all immigrants held in detention, as well as for unaccompanied children held in shelters by the HHS Office of Refugee Resettlement. In June, EOIR began reopening some courts across the country for individual hearings but has not explained its methodology for picking which courts should be reopened. Several courts that reopened have been forced to close unexpectedly for days at a time when a COVID-19 exposure occurs. While most courts remained shuttered through August, by the end of September the majority of courts had reopened for at least some hearings.
Analysis and Recommendations: Requiring detained immigrants and unaccompanied children to gather in close proximity for court hearings risks furthering the spread of COVID-19. EOIR should suspend all in-person immigration court hearings and utilize remote technology until COVID-19 is under control. When choosing how to reopen courts, EOIR should provide a clear and detailed public plan on ensuring the safety of immigrants, court staff, and attorneys.
Congress’ Response to the Impact of COVID-19 on Immigrants
In response to the economic downturn, Congress passed several stimulus measures intended to provide financial support to individuals, businesses, and governments across the country—while also increasing the availability of medical testing and treatment.
The “Coronavirus Aid, Relief, and Economic Security” Act, or CARES Act, directs the expenditure of approximately $2 trillion in new spending to provide emergency assistance—including direct payments—for individuals, families, and businesses impacted by the COVID-19 pandemic. However, many immigrants and their families have been left out. Noncitizens who lack Social Security numbers but nevertheless file federal income tax returns using Individual Taxpayer Identification Numbers (ITINs)—including millions of lawfully-present noncitizens and their families—are deemed ineligible for recovery rebates and emergency grants. Even American citizens who file their taxes jointly with someone using an ITIN are denied eligibility.
The CARES Act also includes language allowing colleges and universities to use emergency funding to award emergency financial aid grants to undergraduate and graduate students to assist with unexpected expenses and unmet needs that arise as a result of the COVID-19 pandemic. The U.S. Department of Education has worked to limit the availability of these grants to students who are U.S. citizens and certain qualifying noncitizens. Many noncitizens—including millions of international students and DACA recipients—are deemed ineligible for emergency grants under the CARES Act and are left with little to no options to obtain economic assistance during the pandemic.
Analysis and Recommendations: Congress has largely failed to provide meaningful support to millions of immigrants and mixed status families throughout the United States. Congress should provide support to mixed status families and take proactive steps to protect immigrants whose status is at risk due to COVID-19. The Department of Education should also ensure that noncitizen students remain eligible for emergency grants throughout the pandemic.