SERIES: COVID-19’s Long-Term Policy Implications - COVID-19’s Impact on Immigration
The COVID-19 pandemic has rightly become the sole focus of the public health policy world, but it is also having far reaching effects into policy landscapes way beyond healthcare. This blog post is the thirteenth in a series that will explore how COVID-19 is changing American life, and as a result, impacting various policy areas. This series will explore changing American attitudes, examine new policy ideas, and project on legislative and regulatory activity we may see as a result of the virus in the months ahead.
Since the start of the COVID-19 outbreak in the U.S., the public health crisis has disrupted administrative processing of routine immigration issues. It has also created opportunities for the Trump Administration to pursue its immigration policy objectives, at the same time American families and businesses look to immigration reforms to survive the global pandemic.
Border Security and Detention
Though the Trump Administration has continued to suggest that illegal border crossings remain a problem, data suggests that COVID-19 may be suppressing the number of individuals seeking to enter the U.S. illegally. The 15,862 migrants apprehended at the Southern border in April 2020 represents half the number of migrants apprehended in March 2020 and was the lowest monthly figure since May 2017. This may have been due, at least in part, to the fact that Mexico, Guatemala, Honduras, and El Salvador, the native countries of the largest migrant populations seeking to enter the U.S. at the Southern border, had and continue to have far fewer cases of COVID-19 than the U.S.
Regardless, in March, the U.S. and Mexican governments reached a deal to limit non-essential travel at the border. As part of the agreement, the U.S. decided to immediately expel migrants, rather than take them into permanent facilities where they could be susceptible to exposure to COVID-19. Under the policy, U.S. officials had turned away 20,860 migrants by early May. Also in March, the U.S. Government also stopped processing asylum seekers at legal border crossings, leaving thousands of migrants stranded.
The Trump Administration hoped a decrease in encounters would make it easier to implement public health precautions in U.S. Customs and Border Patrol (CBP) holding facilities and longer-term U.S. Immigration and Customs Enforcement (ICE) detention centers. However, COVID-19 has hit these facilities hard. As of early June, 3,183 ICE detainees across the country have tested positive for the virus. According to ICE statistics, 950 detainees are currently infected with COVID-19 and 13,562 detainees have been tested. Additionally, more than 900 employees for private contractors running immigrant detention centers have tested positive and 45 ICE staff have been infected with COVID-19.
Due to worsening conditions at detention facilities during the pandemic, dozens of migrant children are being held at hotels, while they await deportation from the U.S. From March 2020 through June 2020, CBP reported it apprehended nearly 100,000 people at the border. More than 6,000 were unaccompanied children.
Repatriation of Americans and Ongoing Travel Advisories
As the U.S. started implementing stay at home orders domestically to “flatten the curve,” many Americans working, studying, and traveling abroad were stranded and unable to return to their homes in the U.S. When the virus began to spread outside China, many governments that had yet to confirm cases implemented travel restrictions, mandatory quarantines, and border closures, with little to no notice provided to diplomats and other foreigners in their countries.
During a recent House Foreign Affairs Committee hearing on the administration’s Fiscal Year 2021 (FY21) budget request, a top State Department official testified the agency has spent over $196 million in its efforts to bring over 110,000 Americans home following unprecedented border closures. American citizens taking repatriation flights are required by law to repay the cost of the flight. The State Department provided up to $8 million in loans to citizens who could not afford the cost of their repatriation flights. As of May 13, the State Department reported it had coordinated the repatriation of 85,141 Americans on 881 flights from 131 countries and territories due to COVID-19.
As the virus continued to spread, several travel advisories were released. On March 12, the State Department issued a Level 3 advisory urging Americans to “reconsider” travel, due to the global impact of COVID-19. On March 19, the global travel advisory was raised to Level 4, “do not travel”. For harder hit countries, the State Department provided even more tailored guidance. For example, in regards to travel to Italy, the State Department issued an advisory on February 29 that included Level 4 warnings specifically for the Lombardy and Veneto regions.
Although the Level 4 global travel advisory remains in effect, some Americans are beginning to travel again as cases abroad subside. The State Department recommends any Americans traveling outside the country enroll in the Smart Travel Enrollment Program (STEP), a free service that allows U.S. citizens and nationals traveling and living abroad to notify the nearest U.S. Embassy or consulate of their trip. The State Department is also encouraging Americans who choose to travel abroad to monitor U.S. Embassy websites for updates regarding future flights.
Impacts on Visa Processing and Passport Operations
In March, the State Department announced it would temporarily suspend routine visa processing services. As resources have allowed, embassies and consulates have entered a phased resumption of visa services, with a focus on the urgent travel needs of medical personnel working to treat or mitigate the effects of COVID-19. This has led to priority processing of I-129 and I-140 visa petitions and DS-2019 certificates of eligibility to obtain J-1 visas. Due to the pandemic, the State Department has also allowed J-1 alien physicians to extend their programs in the U.S. Generally, a J-1 program for a foreign medical resident can be extended one year at a time for up to seven years.
Additionally, the State Department publicly recognized the importance of the H-2 program to the U.S. economy and food security, directing U.S. Embassies and consultants to continue to process as many H-2 visa cases as possible.
To prevent the spread of COVID-19 and protect its workforce and customers, the State Department also announced a significant reduction in passport operations, temporarily suspending expedited passport processing and restricting services to cases involving life-or-death emergencies. As of July 27, a total of 16 passport agencies have entered either phase one or phase two stages of reopening, but only to assist customers in need of a passport within 72 hours by appointment only.
For the week of July 16-22, the most recent week for which data is available, the State Department received 143,000 new passport applications with 1.23 million passports awaiting issuance. Prior to the pandemic, the State Department would provide passport applicants with updates on processing times and estimated dates by which applicants might expect to receive their passports and any citizenship documentation provided by mail. These status updates have been suspended and will not return until passport agencies enter phase three of reopening.
The money that is collected by visa and passport fees, typically around $3.5 billion annually, is allocated towards providing services to Americans abroad. These revenues were largely put to use repatriating Americans who were stranded abroad in the early days of the pandemic. This year, the State Department is expecting a loss of $1.4 billion as a result of COVID-19’s impacts on visa and passport processing. It is unlikely the State Department will be made whole in this year’s appropriations process.
Immigrants and Our Nation’s Healthcare Workforce
The COVID-19 crisis and the priorities it has created for visa processing have highlighted how sustaining our country’s healthcare workforce is a matter of vital national interest. Immigrants represent disproportionately high shares of U.S. workers in many essential occupations, including in healthcare. The COVID-19 pandemic has underscored the large immigrant population that comprises the U.S. healthcare workforce, as foreign-born doctors and nurses have played a significant role in frontline pandemic response sectors. According to a recent Migration Policy Institute study, in 2018, more than 2.6 million immigrants, including 314,000 refugees, were employed as healthcare workers, with 1.5 million of them working as doctors, registered nurses, and pharmacists.
The medical residents, physicians, postdoctoral researchers, and nurses who work and train in the U.S. on H-1B and J-1 visas are integral to providing healthcare nationwide. Despite this, the U.S. immigration system has not typically prioritized attracting foreign-born healthcare professionals. Just 4,771, or roughly five percent, of the 93,615 H-1B petitions approved for initial employment in FY18 went to workers in occupations in healthcare and medicine, according to Department of Homeland Security (DHS) data. Instead, 51 percent of annual H-1B petitions in FY18 went to workers in computer science-related occupations.
As an alternative to securing a visa, healthcare workers can apply for green cards to gain legal entry into the U.S. However, the wait times to get a green card, using any of the employment-based categories, are extremely long for applicants from certain large countries, such as India and China. Due to per-country limits placed on green cards and a limit on the total number available each year, there are massive backlogs, and certain applicants may have to wait for decades before a green card becomes available.
According to data published by the Association of American Medical Colleges (AAMC), the U.S. could see an estimated shortage of between 54,100 and 139,000 physicians, including shortfalls in both primary and specialty care, by 2033. The gap between the country’s increasing healthcare demands and the supply of doctors to adequately respond has become more evident as the U.S. fights COVID-19. The challenge of having enough doctors to serve communities is expected to worsen as the population grows and Americans live longer. Though the solution to this problem has to be multi-pronged, foreign-born doctors and nurses will play a key role in addressing this shortage.
One piece of legislation that could further jeopardize the ability of alien nurses to obtain visas to work in the U.S. is the Fairness for High-Skilled Immigrants Act. This legislation would amend the Immigration and Nationality Act (INA) to eliminate the per-country cap for employment-based immigrants and increase the per-country cap for family-sponsored immigrants. The employment-based cap would be replaced with a first-come, first-serve approach to processing visa applications.
This legislation has attracted bipartisan support in the House and Senate. However, healthcare advocates believe it would disproportionately impact nurse immigration and adversely impact the ability of hospitals throughout the country to meet the demand for high-skilled healthcare professionals. Most tech companies hire foreign workers using the temporary H-1B visa program, which then allows these workers to get in the queue to apply for an immigrant visa while working in the U.S. Foreign-trained nurses cannot take advantage of temporary visa programs and because they must have immigrant visas to enter and work in the U.S. The Fairness for High-Skilled Immigrants Act was passed by the House on July 10, 2019, introduced in the Senate, and referred to the Judiciary Committee, where it remains pending.
Supreme Court Activity and the Future of DACA
Among the foreign-born doctors and nurses serving on the frontlines of the COVID-19 pandemic are at least 29,000 healthcare workers and 200 medical students receiving Deferred Action for Childhood Arrivals (DACA) benefits. DACA was first implemented by President Barack Obama in 2012 to provide protections to undocumented immigrants who came to the U.S. as children, including authorization for Dreamers to work in the U.S.
Republicans have long opposed DACA and the Trump Administration moved to rescind the program in 2017. However, on June 18, Chief Justice Roberts joined the four liberal justices of the Supreme Court in the majority opinion in the Department of Homeland Security v. Regents of the University of California. The Supreme Court ruled the Trump Administration had erred in the manner it attempted to rollback DACA by running afoul of the Administrative Procedures Act. In the majority opinion, the justices also stated the Trump Administration had failed to provide justification for ending the program.
On July 27, the Trump Administration announced that rather than making another immediate legal attempt to rescind the program, it intends to undertake a review of the DACA program. The review is expected to last approximately 100 days and will aim to ensure the administration’s legal justifications for ending DACA comply with the Administrative Procedures Act.
Coinciding with the announcement of the DACA review, DHS issued a memo indicating it would not accept DACA requests while the review is pending and limit DACA renewals to one year instead of two. The memo also directs the administration to only grant permission to current DACA beneficiaries to travel outside the U.S. through advance parole in exceptional circumstances. Since a federal judge ruled last week that the Trump Administration must resume accepting DACA applications following the Supreme Court ruling, additional lawsuits are expected.
In the longer-term, pro-immigration organizations are concerned the recent Supreme Court ruling provides the Trump Administration with a potential pathway to use its authority to rescind DACA, especially if he is reelected this fall. In the meantime, it remains unclear how the role of Dreamers in fighting COVID-19 might influence a legislative push to protect the program.
Rules Regarding the Student and Exchange Visitor Program
On July 6, as many colleges and universities were announcing their reopening plans for the fall semester, ICE released new rules regarding students studying in the U.S. in the Student and Exchange Visitor Program (SEVP).
Prior to the start of the pandemic, international students in the SEVP program were not permitted to take more than three credit-hours in an online format, but that limit was lifted in the spring as most higher education institutions moved classes online. The new rules mostly reversed previous COVID-19 guidance.
On July 13, Harvard University and the Massachusetts Institute of Technology (MIT) sued in federal court to seek to overturn the prohibition on international students enrolling exclusively in online courses. More than a dozen briefs were filed in support of Harvard and MIT’s position, which ultimately achieved the backing of more than 200 colleges and universities, as well as business trade associations and tech companies, which are currently hiring foreign students at a rate nearly six times greater than a decade ago. Johns Hopkins University also filed a separate lawsuit against ICE focusing on how the rule affects new international students.
The rule change was abandoned by ICE as part of a settlement agreement with Harvard and MIT, but the Johns Hopkins suit remains active. As of right now, returning international students taking classes entirely online due to the COVID-19 pandemic will be able to study inside the U.S., but the status of new students remains unknown. During the onset of the pandemic this spring, over 90 percent of international students decided to remain in the country to finish their coursework. Universities had a financial impetus to oppose this rule, as international students typically do not qualify for federal student aid, and supply universities with much-needed full tuition payments.
The Trump Administration’s Immigration Proclamations
Since January, the Trump Administration has implemented more than 50 immigration actions aimed at addressing immigration policy, including issuing two major proclamations related to COVID-19 in April and June.
President Trump’s April 22 proclamation suspended entry of immigrants into the U.S. This included suspending immigrant visas for new prospective permanent residents for at least 60 days, with exceptions for existing immigrant visa holders, spouses and minor children of citizens, special immigrant visa applicants, EB-5 investors, and medical professionals or researchers.
On June 22, President Trump issued an additional proclamation expanding and extending his April 22 proclamation. The newer policy suspends some immigration from outside the U.S. that was set to expire on June 23 and extends the initial green card ban in the April proclamation through December 31. The proclamation indicated that new visa restrictions, detailed below, would apply to certain travelers located outside the U.S. who were not already in possession of a valid visa or travel document.
The June 22 proclamation also included categories eligible for exemptions for the ban into the U.S. These exempted categories included Lawful Permanent Residents (LPRs), healthcare professionals and their families, EB-5 investors, spouses of U.S. citizens, children of U.S. citizens and prospective adoptees, individuals important to law enforcement objectives, members of the U.S. military and their families, individuals and their families traveling on Special Immigrant Visas, and individuals whose entry would be in the national interest. It was only on July 22 the State Department provided guidance on national interest exceptions.
On June 29, the White House issued an amendment to the June 22 proclamation to clarify that a located person outside the U.S. is exempt from the travel ban only if he or she holds a valid, unexpired visa in one of the classifications cited in the proclamation, and is reentering the U.S. using that unexpired visa.
Visa Restrictions and Pending Lawsuits
The June 22 expansion of visa restrictions applies to individuals seeking to enter the U.S. from another country through the following immigrant and nonimmigrant family visa programs, as well as immigrant and nonimmigrant work programs:
Family-Based Permanent Immigrant Visas
IR-5 visas for the parents of U.S. citizens;
F1 visas for the unmarried adult children of U.S. citizens;
F2 visas for the spouses and unmarried children of U.S. lawful permanent residents (green card holders);
F3 visas for married sons or daughters of U.S. citizens; and
F4 visas for adult siblings of U.S. citizens.
Family-Based Temporary Nonimmigrant Visas
H-4 visas for spouses and minor children of H-1B and H-2B workers;
J-2 visas for spouses and minor children of J-1 workers and trainees; and
L-2 visas for spouses and minor children of L-1 intracompany transferees.
Employment-Based Permanent Immigrant Visas
EB-1 visas for outstanding researchers and scientists, executives, and those with extraordinary talent in their field;
EB-2 visas for those with an advanced degree or an exceptional ability in their field;
EB-3 visas for skilled workers, professionals with college degrees, and some lower skilled workers; and
EB-4 visas for religious workers, broadcasters, translators, and other categories of “special” immigrant workers.
Employment-Based Temporary Nonimmigrant Visas
H-1B visas for those working in a specialty occupation requiring the theoretical and practical application of a body of highly specialized knowledge;
H-2B visas for nonagricultural seasonal guest workers;
L visas for executives or managers who already have positions in the foreign office of an American company seeking to transfer to the United States; and
Certain J visas for interns, trainees, teachers, camp counselors, au pairs, and those participating in the summer work travel program.
While the Trump Administration argues visa restrictions are necessary to protect employment opportunities for Americans who have been laid off during the COVID-19 pandemic, Democratic policymakers, immigration advocates, and U.S. businesses argue the ban will exacerbate damage to the economy and slow economic recovery. As a result, several lawsuits have been filed seeking to block the implementation of the proclamation.
Just last week, business trade associations, including the U.S. Chamber of Commerce and the National Association of Manufacturers (NAM) filed a lawsuit in federal court, claiming the ban on temporary work visas violates immigration laws, inflicts severe economic harm on America companies, stifles innovation, and impedes the country’s ability to compete in the global economy. Additional lawsuits have been filed by the American Immigration Lawyers Association (AILA) and other organizations that represent diversity visa applicants.
The Biden Plan for Immigration
The Biden Plan to Combat COVID-19 and Prepare for Future Global Health Threats makes clear that every person who needs a COVID-19 test should be able to get one. It explicitly stands that individuals should not have to pay anything out of pocket for the visit at which the test is ordered, regardless of their immigration status. Further, the Biden plan reverses the Trump Administration’s public charge rule, which places restrictions on documented immigrants who receive public health benefits and discourages all immigrants from seeking healthcare services for COVID-19.
More generally, Vice President Biden has also released a Plan for Securing Our Values as a Nation of Immigrants. This plan outlines a number of administrative actions a Biden Administration would take in its first 100 days to reverse Trump-era policies related to detention, asylum, travel bans, and the border wall. The Biden campaign has also outlined ways it will work with Congress to pass legislation that creates a roadmap to citizenship, reforms the temporary visa system, and preserves diversity preference to ensure immigrants everywhere have the chance to legally become U.S. citizens.