In the age of coronavirus, policies imposed by U.S. Citizenship and Immigration Services (USCIS) are making it difficult for businesses, high-skilled professionals and others to file applications and meet deadlines. Attorneys say that although USCIS has made one positive accommodation their clients deserve policies that better take into account the new health and safety realities of doing business under social distancing, remote work and USCIS office closures.
In general, USCIS policies are years behind and have not adapted to the modern work environment, which has become more evident in the face of worldwide concerns about coronavirus. A glaring example, attorneys say, is USCIS still does not permit electronic filing for the most commonly used employment-based forms.
While USCIS service centers continue to operate, many businesses are following the recommendations of health experts and have moved to remote work. Paper-based applications and hard copy checks to pay filing fees are still required for most employment-based petitions. Vic Goel, managing partner of Goel & Anderson, said USCIS has not indicated it will relax or grant leniency on required filing dates and Requests for Evidence (RFE) response dates.
“Employers and law firms are straining to maintain paper-based processes while working remotely,” said Goel in an interview. “Particularly in areas where people have been told to temporarily close, as in California, New York, Illinois and Pennsylvania, it has become difficult to comply with USCIS requirements and meet filing deadlines.”
On March 20, 2020, USCIS made an accommodation welcomed by attorneys and employers by relaxing the requirement to obtain “wet” signatures on forms. “For forms that require an original ‘wet’ signature, per form instructions, USCIS will accept electronically reproduced original signatures for the duration of the National Emergency,” USCIS said in a statement. “This temporary change only applies to signatures. All other form instructions should be followed when completing a form.”
“The relaxation of the signature requirement helps but USCIS has not addressed the fact that applications are still paper-based or that the agency requires hard copy checks,” said Goel.
A practical solution would be for USCIS to allow filing fees to be charged on a credit card for all form types using Form G-1450, which is now permitted only for applications processed at a USCIS lockbox and, therefore, excludes the major employment-based applications filed at USCIS service centers. Goel notes USCIS also could issue an interim final rule to allow ACH payments direct from a bank using Form G-1450. Applications (or petitions) filed at service centers include H-1B, H-2A, H-2B, H-3, L-1, O-1, TN and a few others.
While the annual H-1B lottery garners most of the media attention, USCIS adjudicates more than twice as many H-1B petitions each year for continuing employment. (These are extensions for existing H-1B visa holders.) In addition, employers often need to file amendments for H-1B employees, including when they must work in a new metropolitan statistical area (MSA). There are also many applications for L-1 visa holders and employment-based immigrants that need processing.
Goel and other attorneys note current USCIS practices go against Centers for Disease Control and Prevention (CDC) guidelines for controlling coronavirus. The process of gathering documents, forms and checks means Goel’s law firm has been forced to circulate employees in and out of the firm’s offices rather than permit everyone to work from home.
USCIS is not the only government agency whose policies have been questioned. Immigration and Customs Enforcement (ICE) has been criticized for requiring attorneys to provide their own protective gear to visit clients in detention. “ICE/ERO [Enforcement and Removal Operations] now requires all legal visitors, CODELs, and STAFFDELs to provide and wear personal protective equipment (PPE) (disposable vinyl gloves, N-95 or surgical masks, and eye protection) while visiting any detention facility,” according to ICE guidelines. Attorneys point out there is currently a shortage of such equipment.
Many foreign nationals are facing crucial deadlines and, unlike in a number of other countries, USCIS has not relaxed immigration deadlines. France has extended all expiring residence permits for 90 days, according to the Fragomen law firm, while Ireland has provided a “blanket two-month automatic renewal of immigration status for all foreign nationals whose status is due to expire March 29 to May 20, 2020.”
USCIS offices are closed at least until April 1, 2020. However, a new government directive discourages people gathering in federal offices. Combined with other concerns, the directive could delay reopening USCIS offices to the public.
The problem, Jeffrey Gorsky, a senior counsel with Berry Appleman & Leiden, said in an interview is many applications require in-person interviews or access to a USCIS office. For example, USCIS requires interviews as part of the process to obtain family-based and employment-based adjustment of status (to obtain a green card inside the United States). The same is true for naturalization. For several other immigration applications, biometrics collection (photos and fingerprints) must be done at USCIS offices.
The spouses of H-1B visa holders and individuals with Deferred Action for Childhood Arrivals (DACA), among others, are likely to miss deadlines to renew Employment Authorization Documents (EADs) if USCIS office closures continue, note attorneys. Without an EAD many individuals cannot work legally in the United States. “USCIS remote work agreements, office closures and staff reductions portend more and more interview cancellations, appointment reschedulings, adjudication delays and backlog buildups that will likely become worse over time,” according to the Seyfarth law firm.
“If the effects of the virus severely disrupt USCIS’s operations, the agency will likely not be able to decide requests to extend or renew work visa status or temporary employment authorization (for persons in the employment-based green card queue filing for adjustment of status) within an acceptable turnaround time,” writes Seyfarth. “Current regulations allowing interim employment authorization while an extension or renewal request is pending – up to 240 days to extend status for most work-visa holders and 180 days for adjustment of status applicants under current regulations – could thus prove to be insufficient.”
Seyfarth concludes: “Unless USCIS takes action to prolong and expand interim grants of employment authorization for pending immigration benefits requests, or otherwise excuse status violations, the situation for employers and their noncitizen temporary workers (and families) will become dire.”
In a March 16, 2020, statement, the Alliance of Business Immigration Lawyers (ABIL) urged U.S. Citizenship and Immigration Services, the State Department and other federal agencies to “announce the immediate suspension of all immigration compliance deadlines in order to help minimize harms to public safety and business continuity caused by the COVID-19 pandemic.”
In sum, critics say USCIS can adapt its policies to the new realities of coronavirus – or it can continue its old ways that have made life more difficult and dangerous for attorneys, employers and immigrants.
I am the executive director of the National Foundation for American Policy, a non-partisan public policy research organization focusing on trade, immigration and related issues based in Arlington, Virginia. From August 2001 to January 2003, I served as Executive Associate Commissioner for Policy and Planning and Counselor to the Commissioner at the Immigration and Naturalization Service. Before that I spent four and a half years on Capitol Hill on the Senate Immigration Subcommittee, first for Senator Spencer Abraham and then as Staff Director of the subcommittee for Senator Sam Brownback. I have published articles in the Wall Street Journal, New York Times, and other publications. I am the author of a non-fiction book called Immigration.
Please follow my instagram: http://instagram.com/arminhamidian67