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USCIS Responds to COVID-19 with Special Consideration for RFEs and NOIDS Signalling for Measures to Protect Immigrant Workforce

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On March 26, 2020, U.S. Citizenship and Immigration Services responded to the Coronavirus (COVID-19) pandemic by announcing that it is taking measures to provide some relief for applicants and petitioners responding to Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs), dated between March 1 and May 1, 2020.

Applicants and petitioners who receive an RFE and/or NOID are given a deadline to respond with additional evidence. For RFEs or NOIDs dated between March 1 and May 1, 2020, USCIS is extending the response deadline outlined in the RFE or NOID by 60 calendar days. USCIS will consider any responses submitted within 60 days after the response deadline before any action is taken. 

On March 30, 2020, USCIS extended the flexibility to Notices of Intent to Revoke (NOIR) and Notices of Intent to Terminate (NOIT) regional investment centers, as well as certain filing date requirements for Form I-290B, Notice of Appeal or Motion, dated between March 1 and May 1, 2020.

For notice or decisions dated between March 1, 2020 and May 1, 2020, USCIS is extending the response deadline outlined in the RFE, NOID, NOIR, and NOIT by 60 calendar days. USCIS will consider any responses submitted within 60 days after the response deadline before any action is taken. For Form I-290B, appealable decision within AAO jurisdiction received up to 60 calendar days from the date of the decision will be considered by USCIS before it takes any action.

USCIS announced that it is “adopting several measures to protect our workforce and community, and to minimize the immigration consequences for those seeking immigration benefits during this time.”

The decision to extend response deadlines may signal further consideration for non-immigrant workers who have been placed on paid/or unpaid leave, furloughed, or temporarily laid-off due to COVID-19.

Foreign nationals on non-immigrant work visas are tied to the conditions of employment for which they received the visa. In particular, this has put O1/O2, E1/E2, L1 and H1B workers in a sticky situation – to stay the duration of their given grace period and see what happens, or to leave the country if they still can.

We have received numerous questions about a non-immigrant work visa holder’s ability to receive full/partial public benefits due to temporary unemployment and whether receiving those benefits would make them a “public charge.”

Typically, a foreign national who has lost a job (due to COVID-19 or otherwise) and applies and receives certain state or federal general assistance runs a risk of becoming a public charge and being denied a visa in the future.

However, in response to COVID-19, USCIS issued a statement clarifying that “if the alien is prevented from working or attending school, and must rely on public benefits for the duration of the COVID-19 outbreak and recovery phase, the alien can provide an explanation and relevant supporting documentation. To the extent relevant and credible, USCIS will take all such evidence into consideration in the totality of the alien’s circumstance.”

In cases where the visa holder’s employer, school, or university has voluntarily shut down operations to prevent the spread of COVID-19, or there are “disease prevention methods such as social distancing or quarantine,” the visa holder may submit a statement with his or her application for adjustment of status to explain how they have affected the individual in relation to USCIS public charge inadmissibility determination.

A visa holder placed on unpaid leave may be able to receive state-funded benefits and some but not all federal benefits (see the specific list and exceptions) and not be deemed to have been out of status or a public charge.  

Caveats:

  • The filing must occur less than 60 days after cessation of work. 
  • May need to file a new visa with the same employer, but USCIS does not provide clear directions on that yet; or
  • May need to file a new petition with a new employer.

It is important to bear in mind that receipt of public benefits is only one consideration of a public charge inadmissibility determination among a number of factors and considerations in the totality of the visa holder’s circumstances over a period of time with no single factor being outcome determinative. Additionally, one of the factors in denying a green card application under public charge is if an individual is on unemployment for 12 months out of a period of 36 months. 

The list of public benefits considered in the public charge ground of inadmissibility includes most forms of federally funded Medicaid (for those over 21).

However, the USCIS website states that exceptions include “CHIP, or state, local, or tribal public health care services/assistance that are not funded by federal Medicaid.”

The Public Charge rule does not restrict access to testing, screening, or treatment of communicable diseases, including COVID-19.

Prohibited federal funds are:

  • Supplemental Security Income (SSI) 
  • Temporary Assistance to Needy Families (TANF)
  • State general relief or general assistance
  • Medicaid program that covers institutional long-term care
  • Supplemental Nutrition and Assistance Program (SNAP)
  • Non-emergency Medicaid
  • Section 8 Housing Choice Voucher Program
  • Section 8 Project-Based Rental Assistance
  • Public Housing

Exceptions to prohibited federal funds are: 

  • Emergency medical assistance
  • Disaster relief
  • National school lunch programs
  • The Special Supplemental Nutrition Program for Women, Infants, and Children
  • The Children’s Health Insurance Program
  • Subsidies for foster care and adoption
  • Government-subsidized student and mortgage loans
  • Energy assistance
  • Food pantries and homeless shelters 
  • Head Start

Per law, DHS will not consider the following Medicaid benefits received:   

  • For the treatment of an “emergency medical condition;”  
  • As services or benefits provided in connection with the Individuals with Disabilities Education Act; 
  • As school-based services or benefits provided to individuals who are at or below the oldest age-eligible for secondary education as determined under state or local law;
  • By aliens under the age of 21; and  
  • By pregnant women and by women within the 60 days beginning on the last day of the pregnancy.

In this situation (COVID-19/Coronavirus), the beneficiary should keep all medical records and obtain letters from employers informing them they cannot work because of COVID-19 as proof, because 2020 immigration forms include these types of questions.

Could my non-immigrant work visa be revoked if I attest that my work has ceased, even temporarily, to apply for unemployment benefits?

Under the employment law, O1/O2, E1/E2, L1, and H1B workers could be eligible for paid unemployment benefits, which will not raise immediate concerns for purposes of the public charge regulations. 

In light of the COVID-19 pandemic, there is not yet a clear-cut answer. However, USCIS’s most recent statement may signal a temporary relaxation of regulation.

Opinion: What does this mean for those affected?

The date of initiation of unemployment benefits could be treated as the date of foreign-national entering their given grace period. We can then see if USCIS passes any bridge-the-gap measures.

If no measures are passed, the visa holder would either leave (if they can) or file new visas with the same employer before the end of the 60-day grace period. 

However, the cost of filing new visas for all employees within the allotted grace period may be a very costly endeavor, but would more than likely cover them status-wise

Applicants and petitioners who receive an RFE and/or NOID are given a deadline to respond with additional evidence. For RFEs or NOIDs dated between March 1 and May 1, 2020, USCIS is extending the response deadline outlined in the RFE or NOID by 60 calendar days. USCIS will consider any responses submitted within 60 days after the response deadline before any action is taken. 

USCIS announced that it is “adopting several measures to protect our workforce and community, and to minimize the immigration consequences for those seeking immigration benefits during this time.”

The decision to extend response deadlines may signal further consideration for non-immigrant workers who have been placed on paid/or unpaid leave, furloughed, or temporarily laid-off due to COVID-19.

Foreign nationals on non-immigrant work visas are tied to the conditions of employment for which they received the visa. In particular, this has put O1/O2, E1/E2, L1 and H1B workers in a sticky situation – to stay the duration of their given grace period and see what happens, or to leave the country if they still can.

We have received numerous questions about a non-immigrant work visa holder’s ability to receive full/partial public benefits due to temporary unemployment and whether receiving those benefits would make them a “public charge.”

Typically, a foreign national who has lost a job (due to COVID-19 or otherwise) and applies and receives certain state or federal general assistance runs a risk of becoming a public charge and being denied a visa in the future.

However, in response to COVID-19, USCIS issued a statement clarifying that “if the alien is prevented from working or attending school, and must rely on public benefits for the duration of the COVID-19 outbreak and recovery phase, the alien can provide an explanation and relevant supporting documentation. To the extent relevant and credible, USCIS will take all such evidence into consideration in the totality of the alien’s circumstance.”

In cases where the visa holder’s employer, school, or university has voluntarily shut down operations to prevent the spread of COVID-19, or there are “disease prevention methods such as social distancing or quarantine,” the visa holder may submit a statement with his or her application for adjustment of status to explain how they have affected the individual in relation to USCIS public charge inadmissibility determination.

A visa holder placed on unpaid leave may be able to receive state-funded benefits and some but not all federal benefits (see the specific list and exceptions) and not be deemed to have been out of status or a public charge.

Caveats:

  • The filing must occur less than 60 days after cessation of work. 
  • May need to file a new visa with the same employer, but USCIS does not provide clear directions on that yet; or
  • May need to file a new petition with a new employer.

It is important to bear in mind that receipt of public benefits is only one consideration of a public charge inadmissibility determination among a number of factors and considerations in the totality of the visa holder’s circumstances over a period of time with no single factor being outcome determinative. Additionally, one of the factors in denying a green card application under public charge is if an individual is on unemployment for 12 months out of a period of 36 months. 

The list of public benefits considered in the public charge ground of inadmissibility includes most forms of federally funded Medicaid (for those over 21). 

However, the USCIS website states that exceptions include “CHIP, or state, local, or tribal public health care services/assistance that are not funded by federal Medicaid.”

The Public Charge rule does not restrict access to testing, screening, or treatment of communicable diseases, including COVID-19.

Prohibited federal funds are:

  • Supplemental Security Income (SSI) 
  • Temporary Assistance to Needy Families (TANF)
  • State general relief or general assistance
  • Medicaid program that covers institutional long-term care
  • Supplemental Nutrition and Assistance Program (SNAP)
  • Non-emergency Medicaid
  • Section 8 Housing Choice Voucher Program
  • Section 8 Project-Based Rental Assistance
  • Public Housing

Exceptions to prohibited federal funds are: 

  • Emergency medical assistance
  • Disaster relief
  • National school lunch programs
  • The Special Supplemental Nutrition Program for Women, Infants, and Children
  • The Children’s Health Insurance Program
  • Subsidies for foster care and adoption
  • Government-subsidized student and mortgage loans
  • Energy assistance
  • Food pantries and homeless shelters 
  • Head Start

Per law, DHS will not consider the following Medicaid benefits received:   

  • For the treatment of an “emergency medical condition;”  
  • As services or benefits provided in connection with the Individuals with Disabilities Education Act; 
  • As school-based services or benefits provided to individuals who are at or below the oldest age-eligible for secondary education as determined under state or local law;
  • By aliens under the age of 21; and  
  • By pregnant women and by women within the 60 days beginning on the last day of the pregnancy.

In this situation (COVID-19/Coronavirus), the beneficiary should keep all medical records and obtain letters from employers informing them they cannot work because of COVID-19 as proof, because 2020 immigration forms include these types of questions.

Could my non-immigrant work visa be revoked if I attest that my work has ceased, even temporarily, to apply for unemployment benefits?

Under the employment law, O1/O2, E1/E2, L1, and H1B workers could be eligible for paid unemployment benefits, which will not raise immediate concerns for purposes of the public charge regulations.

In light of the COVID-19 pandemic, there is not yet a clear-cut answer. However, USCIS’s most recent statement may signal a temporary relaxation of regulation.

Opinion: What does this mean for those affected?

The date of initiation of unemployment benefits could be treated as the date of foreign-national entering their given grace period. We can then see if USCIS passes any bridge-the-gap measures.

If no measures are passed, the visa holder would either leave (if they can) or file new visas with the same employer before the end of the 60-day grace period.

However, the cost of filing new visas for all employees within the allotted grace period may be a very costly endeavor, but would more than likely cover them status-wise

About the Author Jon Velie

About the author: Jon Velie has practiced Immigration law since 1993. He is CEO of OnlineVisas.com., the intelligent Immigration platform. Jon is an Amazon number one best-selling author of H1B Visa: Application & Approval, is regularly covered by major media and has won a number of international awards. Jon can be contacted at jon@onlinevisas.com or 405-310-4333 office or 405-821-5959 mobile.

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