The Coronavirus and U.S. Immigration

The spread of the coronavirus (Covid-19) has taken over the headlines and captured most everyone’s attention, for obvious and scary reasons.  The coronavirus has already had an impact on U.S. immigration, and I expect we’ll see more restrictions in the coming weeks. Hopefully, most issues can be navigated with planning and foresight, but delays seem inevitable.

Inadmissibility for health related reasons is perhaps the oldest basis for denying entry to the United States. Last year I had the pleasure of visiting Ellis Island, that famous first-stop for immigrants in New York City harbor. I highly recommend the visit. The island served for decades as a place off the mainland to first examine immigrants for communicable diseases and other bases for inadmissibility. The use of an island for this purpose was intentional, as it kept immigrants separated from the U.S. population until cleared for entry.

Already, we are seeing the coronavirus impact immigration policy:

  • On January 31, 2020, the White House suspended and limited the entry of all aliens who were physically present within the People’s Republic of China, excluding the Special Administrative Regions of Hong Kong and Macau, during the 14-day period preceding their entry or attempted entry into the United States, subject to certain exceptions.  [Proclamation 9984, entitled “Suspension of Entry as Immigrants and Nonimmigrants of Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus and Other Appropriate Measures To Address This Risk”]
  • Mandatory quarantines for U.S. citizens who visited the Hubei Province of China. Advanced screenings for people returning from other regions of China.
  • On February 29th, 2020, the White House issued a Proclamation banning the entry of all immigrant and nonimmigrant aliens who were in Iran within 14 days of seeking entry, with many exceptions provided.
  • The USCIS Seattle Field Office, where most of our clients go, has placed restrictions on the attendance of guests at naturalization ceremonies, and has arranged rescheduling for anyone with cold or flu-like symptoms, which could be the coronavirus. These measures were taken immediately after reports surfaced of community transmission of the coronavirus, and sadly the first reported U.S. deaths.

I expect we’ll see more pointed guidance issued to Department of State, U.S. Customs and Border Protection, and U.S. Citizenship and Immigration Service line officers over the next few weeks, especially after this recent new set of cases identified in the United States this past week. I guarantee there are discussions and memos being developed on these topics this week.

An added complication for immigration purposes is the recent expansion of the public charge basis for inadmissibility.  On February 24th, 2020, the U.S. Government introduced substantially heightened standards of proof for applicants for admission, to establish that they are not likely to become a public charge. Consular officers and Customs and Border Protection officers will no doubt be thinking and asking more frequently about an applicant’s ability to pay for health care, if needed, before granting admission.

The Administration has a history of litigation concerning the legality of travel bans. The Supreme Court has expressed great deference to the Executive Branch’s exercise of authority to create immigration restrictions which serve a legitimate government interest. In the 5-4 decision of Hawaii v. Trump, concerning the state-specific travel bans, the Court held that the only prerequisite of §1182(f) of the Immigration & Nationality Act is that the President find that the entry of the covered aliens would be detrimental to the interests of the United States. Practically, this means a family relative or a key employee may encounter travel difficulties in the weeks ahead. We don’t have to look further than the cruise boats to see this situation is already happening.

If the coronavirus outbreak worsens in the United States, or if the Government just fears it might worsen, all sorts of things may be done which will impact immigration. Some speculation: medical examinations could be required of visa applicants, even as they are of immigrants, perhaps on a selective or limited basis.  More waiting periods and quarantines could be imposed, even as we’ve already seen with the China and Iran proclamations. The Government could add restrictions to the visa waiver program, which would have a horrible effect on business and tourist travel.  DHS could implement emergency regulations and require additional tests of adjustment of status applicants.

Immigration processes could slow down. In fact, they’ll probably slow down, regardless. Officers will stay home sick and appointments will then become less available. Lines could be longer at airports and ports of entry, due to staffing shortages and this additional point of inspection. Perhaps there will be less applicants and travelers, but some application processes are already backlogged. USCIS could also begin asking for more information and documentation regarding public charge, and also slow down its already slow adjudication timelines.

For those already here in the U.S., travel abroad is something to be considered carefully. 

BIG PICTURE: Coronavirus will have an impact on immigration and travel for some, and needs to be factored into any application for immigration benefits.  The information and guidance is certain to develop further over the next few weeks, but you can be sure consular officers, CBP inspectors, and USCIS adjudicators are already thinking about it. Plan ahead, build in time to any plan, and seek advice as necessary.

P.S.  I mentioned that health related grounds are one of the oldest bases for inadmissibility in U.S. immigration law.  The provisions are indeed listed first in the Immigration and Nationality Act, even before the criminality provisions.  Here is the language from the statute:

(a) Classes of aliens ineligible for visas or admission

Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

(1) Health-related grounds

(A) In general

Any alien-

(i) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance; 1

(ii) except as provided in subparagraph (C), who seeks admission as an immigrant, or who seeks adjustment of status to the status of an alien lawfully admitted for permanent residence, and who has failed to present documentation of having received vaccination against vaccine-preventable diseases, which shall include at least the following diseases: mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B and hepatitis B, and any other vaccinations against vaccine-preventable diseases recommended by the Advisory Committee for Immunization Practices,

(iii) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services in consultation with the Attorney General)-

(I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, or

(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior, or

(iv) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to be a drug abuser or addict,

is inadmissible.

(B) Waiver authorized

For provision authorizing waiver of certain clauses of subparagraph (A), see subsection (g).

(C) Exception from immunization requirement for adopted children 10 years of age or younger

Clause (ii) of subparagraph (A) shall not apply to a child who-

(i) is 10 years of age or younger,

(ii) is described in subparagraph (F) or (G) of section 1101(b)(1) of this title; 1 and

(iii) is seeking an immigrant visa as an immediate relative under section 1151(b) of this title,

if, prior to the admission of the child, an adoptive parent or prospective adoptive parent of the child, who has sponsored the child for admission as an immediate relative, has executed an affidavit stating that the parent is aware of the provisions of subparagraph (A)(ii) and will ensure that, within 30 days of the child’s admission, or at the earliest time that is medically appropriate, the child will receive the vaccinations identified in such subparagraph.