Consequences of COVID-19 on U.S. immigration policy

In the midst of our interconnected world, COVID-19 has rapidly spread and awakened the world’s anxieties while new related policies have abruptly restricted human movement. As the Trump Administration attempts to contain the contemporary strain of Coronavirus, U.S. immigration policy has been shaped by the crisis.

Impacts of COVID-19 on restrictions on U.S. Visas and Entry

On March 15, the National Association of Immigration Judges, ICE Professionals Union, and the American Immigration Lawyers Association called for the emergency closure of American Immigration Courts to adhere to the COVID-19 public health protocols.

UPDATE: Effective March 18th, 2020, the Department of Justice has postponed all non-detained hearings.

President Trump has issued the following four COVID-19 related proclamations that limit travel to the United States:

  • China Travel Proclamation, effective since February 2, 2020, suspends the entry into the United States of all aliens who were physically present within the People’s Republic of China during the 14-day period preceding their entry or attempted entry into the United States.
  • Iran Travel Proclamation, otherwise known as the Proclamation on the Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus, effective since March 2, 2020, suspends entry of all aliens who were physically present in the Islamic Republic of Iran during the 14-day period preceding their entry or attempted entry into the United States.
  • European Schengen Area Proclamation, effective since March 13, 2020, suspends the entry into the U.S. of all aliens who were physically present within the Schengen Area during the 14-day period preceding their entry or attempted entry into the United States. The written proclamation articulates that the suspension, “shall remain in effect until terminated by the President.”
  • Ireland and United Kingdom Proclamation, effective since March 16, 2020, bans entry into the U.S. of all aliens physically present within the U.K. or the Republic of Ireland during the 14-day period preceding their entry or attempted entry into the United State.

Note: according to NAFSA Association of Intellectual Educators, these proclamations do not apply to any U.S. citizen, or to any alien who is:

  1. a lawful permanent resident of the U.S.
  2. a spouse of a U.S. citizen or lawful permanent resident
  3. a parent or legal guardian of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21;
  4. a sibling of a U.S. citizen or lawful permanent resident, provided that both are unmarried and under the age of 21;
  5. a child, foster child, or ward of a U.S. citizen or lawful permanent resident, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;
  6. an alien traveling at the invitation of the United States Government for a purpose related to containment or mitigation of the virus;
  7. C (transit) or D (air or sea crewmember) nonimmigrants
  8. an alien whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the CDC Director, or his designee;
  9. an alien whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees based on a recommendation of the Attorney General or his designee; or
  10. an alien whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.

U.S. consular offices are temporarily closed in China. All routine immigrant and nonimmigrant visa appointments in India have been cancelled since March 16, 2020. Likewise, U.S. consular services in Italy have been reduced since March 10, 2020.

According to the Migration Policy Institute, never before has the U.S. Administration pursued such a comprehensive travel ban. President Trump’s four proclamations are the most widespread measures ever undertaken by the U.S. government in the context of a public-health threat, screening individuals across the “migration continuum”: during visa application, during plane boarding, and at the arrival to physical borders.

President Trump has suggested that he is considering completely closing the U.S.-Mexico border, regardless of the fact that there are far more reported Coronavirus cases in the U.S. than in Mexico. Migrants have consistently served as the scapegoats for public-health concerns. For instance, Cholera was known as the “Irish disease” in the 1830s.

COVID-19 and USCIS

The USCIS has released a statement requesting aliens to reschedule their appointments or interviews with any USCIS office if they have traveled internationally to any country outside the U.S. within 14 days of the appointment if they believe they may have been exposed to COVID-19, or experience any flu-like symptoms.  Additionally, the USCIS Field office has canceled some upcoming scheduled interviews this week in an effort to reduce the number of applicants coming into the building.

UPDATE: As of March 18, 2020, USCIS has announced that domestic field offices will be closing to the general public for in-person services until June 4th 2020.  This means scheduled immigration and naturalization interviews between that time will be canceled and rescheduled to a later date and time.  For more information, go to uscis.gov.

Likewise, the Department of Homeland and Security (DHS) has noted that both Customs and Border Patrol (CBP) and the Countering Weapons of Mass Destruction Office (CWMD) have worked with the Centers for Disease Control and Prevention (CDC) by conducting enhanced screening at 11 major American airports. At and between all air, land, and sea Ports of Entry, CBP officers and Border Patrol agents are identifying individuals with COVID-19 symptoms or with a travel history to China or Iran in the former 14 days. These individuals are referred to CDC or any other local public health officials for further health screening.

COVID-19 and the Public Charge Rule 

While the “Public Charge” rule has discouraged immigrants from accessing healthcare, the U.S. Citizenship and Immigration Services (USCIS) noted on March 14, 2020, that treatment or preventive services for the COVID-19 would not negatively affect any alien as part of a future Public Charge analysis. The USCIS emphasizes that it encourages all aliens with symptoms that resemble COVID-19 to seek necessary medical attention.

Despite this statement released by the USCIS, there is the possibility that past legislature, such as the “Remain in Mexico” policy and the “Public Charge” act, may exacerbate the crisis if immigrants continue to resist accessing health care out of fear of being negatively impacted. Past immigration enforcement has cultivated a sense of distrust in Latinx communities towards American institutions, which may indirectly endanger the well-being of many Americans especially during this pandemic as fewer individuals seek health care. Furthermore, documented immigrants may avoid attending health centers out of fear that their use of public benefits may hurt their abilities to naturalize or to sponsor a noncitizen for a visa.

Immigration Enforcement and Check-Ins

While immigration law enforcement continues daily enforcement operations and makes criminal and civil arrests, ICE will not conduct operations at medical facilities, except under extraordinary circumstances. In a recently released notice, ICE has said that it will continue to prioritize apprehending individuals who threaten national security and public safety, but is centrally committed to the health of its employees and general public. ICE policy has directed DHS officers to avoid making arrests at sensitive locations like health care facilities without prior approval for an exemption. Additionally, individuals with a scheduled check-in must contact their local ICE office for further guidance.

Detentions

As of March 13, 2020, there have been no confirmed cases of COVID-19 at any ICE detention facilities, according to an official notice from ICE. ICE has instituted screening guidance for new detainees to identify those who meet CDC’s criteria for risk of exposure to COVID-19. Detainees with a fever or respiratory symptoms are isolated and observed for a specified period of time. Additionally, detainees without fever or respiratory symptoms who meet epidemiologic risk criteria are monitored for 14 days. All asymptomatic detainees in isolation can attend medical appointments, while symptomatic detainees in isolation must wear masks to attend medical appointments. The detainee’s medical provider is notified of the detainee’s status.

Personal visitation at detention centers has been temporarily curtailed. ICE will facilitate communication with families, in the absence of visitation, through extended telephone access or other reasonable means.

To note: ICE only detains individuals for immigration purposes, and cannot legally hold a detainee who has an ordered release by a judge. Local public health agencies are notified when an individual who is ill or who was in isolated detention is released.

Removals

The ICE Air flight medical provider conducts visual screenings that reflect ICE policy and procedures on new apprehensions lacking medical summary information who are delivered to the aircraft. Detainees who are not “new apprehensions” are delivered to the aircraft only with medical clearance. Detainees who do not pass screening and/or are suspected of having a health-risk condition that may be contagious are denied boarding and are referred instead to a facility for screening.

Indirect Consequences
Measures taken by the U.S. government in response to the COVID-19 may have unintended effects on migration and human movement. Ramped up screening may not deter travel from outbreak zones, but may incentivize travelers to evade detection if possible by masking symptoms or lying about travel history. Dangerously, this will impact national public health and safety.

The Migration Policy Institute articulates a concern that perhaps these travel bans, which often are symbolic responses, give false hope and foster a “nation-first” attitude that undermine the necessity to create an international solution. Blanket travel bans, such as those proclaimed by the Trump Administration to impede reception of individuals from China, Iran, the EU, the U.K., and Ireland, may prevent much-needed healthcare workers and supplies from entering the United States, which may also negatively impact public health and security.