Legal immigrants at risk of losing status during coronavirus pandemic

Thousands of people with legal status in the United States could inadvertently violate immigration law over the next few months, as the government agency that processes applications remains closed due to the coronavirus pandemic.

Attorneys, think tanks, activists and United States Citizenship and Immigration Services (USCIS) — the agency that issues work permits and naturalizations to foreign nationals — have put forward some proposals to plug holes in existing immigration law, but potentially millions remain at risk.

“Times of crisis point out the failures in the system you’ve got. And one of the failures in our immigration system is it’s not responsive to crises. Period,” said Theresa Cardinal Brown, director of immigration and cross-border policy at the Bipartisan Policy Center.

A main concern for immigration attorneys are foreign nationals whose work permits are about to expire, whether they plan to request an extension or leave the country.

USCIS, a largely paper-based organization, has suspended in-person service until at least April 1 to protect its staff, contractors and prospective applicants from contagion.

“The immediate and most pressing concern for our members and employees is ensuring individuals whose status is expiring have means and measures to remain lawfully,” said Sharvari Dalal-Dheini, director of government relations at the American Immigration Lawyers Association (AILA).

In a letter Monday to Ken Cuccinelli, the USCIS senior official performing the duties of the director, AILA demanded the agency freeze all deadlines as of Friday, threatening litigation if the agency does not comply.

Cuccinelli holds the top job at USCIS and the number two post at the Department of Homeland Security (DHS), both as a senior official performing duties, as he has not been put forward by President Trump for Senate confirmation.

“You’re putting people into a catch-22. You’re being forced to jeopardize your health and the health of those around you to file things in a timely way, or you’re violating immigration law,” Dalal-Dheini said.

DHS has ample authority to suspend deadlines and prolong work authorizations, according to Ur Jaddou, former chief counsel for USCIS.

“They have tremendous authority to extend those periods of authorized stay inside the United States and the associated work authorization,” said Jaddou, the director of DHS Watch, an immigration policy oversight project at progressive advocacy group America’s Voice.

A USCIS spokesman said the agency “is considering a number of options” for people who are unable to leave the United States after their work permits have expired and highlighted the agency’s ability to provide special consideration and expedited processing on a case-by-case basis.

Brown said USCIS could issue extensions for work permits, including for beneficiaries of Deferred Action for Childhood Arrivals (DACA) program, but the Byzantine nature of the immigration system could still complicate many cases.

And Brown warned against any push to relitigate immigration reform in Congress during a time of crisis.

“Right now we need to focus on the immediate needs and what’s pragmatic. I believe what we need to do for immigration right now is just maintain the status quo,” she said.

Some Democrats pushed for a permanent legislative replacement for the DACA program in the House coronavirus stimulus package, but that language was not adopted in the Democratic draft legislation published Monday.

The Democratic proposal did include a provision forcing USCIS to automatically extend status or work authorization to all immigrants whose permits expired within a year of enactment.

The final version of the Senate’s stimulus bill, based on a deal reached by Senate Minority Leader Chuck Schumer (D-N.Y.) and Treasury Secretary Steven Mnuchin, does not include provisions on immigration.

“In negotiations with Republicans, Sen. Schumer pushed to include language that would have automatically extended work authorizations in light of the closures,” said an aide to Schumer.

The Treasury Department did not comment to The Hill.

Still, whether or not stopgap measures are applied could have far-reaching consequences, not just for the applicants, but for critical sectors such as medicine, construction, tech and agriculture.

“The thing that worries me most is all the essential workers in these fields. The number of doctors serving us now who are foreign nationals is large, and nurses and pharmacists,” said Jaddou.

“Think about nursing homes and nurse aides, personal aides at home helping the elderly who are at very high risk,” she added.

Depending on how long USCIS remains shut down, the effects could be felt by millions of such workers.

They include more than 1 million yearly applicants for legal permanent residency, also known as a green card.

USCIS also manages work permits for immigration programs including DACA and temporary protected status (TPS), which together grant permission to work and live in the United States to about a million people.

According to the Institute of International Education, more than 1 million foreign students were enrolled in U.S. educational institutions in the 2018-2019 school year, and nearly 1 million people lived in the country on temporary work visas as of 2018, according to a report by the Migration Policy Institute.

USCIS has taken some measures to simplify filing forms online while minimizing contact between applicants, agency employees and contractors.

On Friday, for instance, USCIS announced it would admit electronic or photocopy signatures on the I-129, a form necessary for any work authorization, departing from its longstanding policy of requiring a “wet,” or ink, signature.

Jaddou said “it’s great” for USCIS employees that the notoriously paper-based agency made that change, but it did little for attorneys and applicants, as the wet signature still has to be collected and filed.

“It’s on them because they’re still requiring the wet signature to be someplace, and that means it has to be collected,” said Jaddou. 

“Attorneys still have to collect wet signatures and hold them,” she added.