Yesterday evening, President Trump signed an executive order to halt the issuance of immigrant visas for 60 days. On Monday night, the President tweeted that he would “temporarily suspend immigration into the United States.” However, his executive order only halts the issuance of immigrant visas at U.S. consulates. Since most consulates are already closed, the executive order doesn't seem to change current policy and its implementation. Fortunately, the executive does not impact foreign nationals filing applications for adjustment of status in the United States (form I-485).
many nonimmigrants are eligible to receive stimulus checks under the Coronavirus Aid, Relief, and Economic Security (CARES) Act.
April 7, 2020
This Legal Sidebar reviews the immigration-related eligibility requirements for two types of benefits established by the CARES Act: (1) the recovery rebates under Section 2201; and (2) the various forms of federally funded unemployment insurance (UI) benefits under Title II, Subsection A. Both benefit types are the subject of other CRS products and have other eligibility rules not related to immigration status. This Legal Sidebar focuses only on the extent to which non-U.S. nationals (aliens) may qualify for the benefits. (For a general overview of the recovery rebates and unemployment compensation programs set forth by the CARES Act, see here and here.)
The following Table provides an overview of the immigration-related restrictions for each benefit type. Immigration-Related Restrictions
Congressional Research Service
CRS Legal Sidebar
Prepared for Members and Committees of Congress
Congressional Research Service 2
Social Security Number Requirement: The CARES Act prohibits payment of the recovery rebate to anyone who does not include a social security number (SSN) on their tax return for the taxable year. Joint filers must include an SSN for both spouses, unless one spouse is in the Armed Forces. For any qualifying child, parents must include the child’s SSN or adoption taxpayer identification number. It appears from the language of the Act that a parent without an SSN may not claim a credit for a qualifying child, even if the child has an SSN, although to date the IRS has not published guidance on this issue.
The Social Security Administration (SSA) issues SSNs to aliens who are authorized to work in the United States—including aliens who apply for and receive employment authorization documents after obtaining Deferred Action for Childhood Arrivals (DACA), Temporary Protected Status (TPS), and other so-called “quasi-legal” statuses.
Although the SSA also issues SSNs to aliens who lack work authorization but need a number to obtain benefits or services, such non-work numbers do not fulfill the SSN requirement under the CARES Act. Specifically, the Cares Act defines the requirement in such a way (by reference to a provision in the Internal Revenue Code which, in turn, references a provision of the Social Security Act) as to allow it to be satisfied only by an SSN that the individual acquired on the basis of being a U.S. citizen, lawful permanent resident (LPR), or an alien authorized to work in the United States.
Nonresident Alien Exclusion: The CARES Act excludes “any nonresident alien individual” from eligibility for the recovery rebates. Under the Internal Revenue Code, “nonresident alien” means any alien who does not satisfy one of two criteria: (1) the alien is an LPR; or (2) the alien satisfies the “substantial presence” test. The IRS explains the substantial presence test as follows:
To meet th[e] [substantial presence] test, you must be physically present in the United States (U.S.) on at least:
1. 31 days during the current year, and
2. 183 days during the 3-year period that includes the current year and the 2 years immediately
before that, counting:
• All the days you were present in the current year, and
• 1/3 of the days you were present in the first year before the current year, and • 1/6 of the days you were present in the second year before the current year.
The substantial presence test has special rules for some aliens considered “exempt individuals,” such as nonimmigrant diplomats and students, and other aliens who demonstrate a closer connection to a foreign country.
Immigration lawyers sometimes use the term “nonresident alien” to mean an alien who is not an LPR, even though the Immigration and Nationality Act does not define the term. That colloquial usage does not apply to the eligibility criteria for recovery rebates under the CARES Act; instead, because the relevant provisions of the CARES Act amend the Internal Revenue Code, the definition of “nonresident alien” in the Internal Revenue Code governs.
Takeaway. Broad categories of work-authorized aliens living in the United States, including many DACA and TPS recipients, will be able to qualify for the recovery rebates because they have SSNs and are resident aliens for tax purposes. Aliens who do not have SSNs—including unlawfully present aliens who pay taxes using individual taxpayer identification numbers (ITINs)—are not eligible for the rebates.
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Less clear are the immigration-related eligibility requirements for federally funded UI benefits under the CARES Act. Whereas eligibility for the recovery rebates depends on requirements set forth in the CARES Act, UI eligibility issues turn partly on the interaction between the CARES Act and other provisions of federal and state law.
Work Authorization Requirement and the Potential “Qualified Alien” Restriction
Under the baseline requirements established in the Federal Unemployment Tax Act (FUTA), aliens typically qualify for regular UI benefits if they are authorized to work (both at the time they perform qualifying work and when they apply for and receive benefits). States may establish stricter rules.
The baseline rule for regular unemployment benefits may change for CARES Act benefits, however. Regular UI benefits are funded by state taxes. But the CARES Act establishes, among other provisions, federal funding for three major UI programs (Pandemic Unemployment Assistance, additional weeks of benefits, and additional $600 in federal weekly compensation), as explained further in another CRS product. Such federal funding may trigger the restriction in 8 U.S.C. § 1611, a provision of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), which limits eligibility for “federal public benefits” to “qualified aliens”—a restrictive term that only covers certain groups enumerated in statute, such as LPRs, asylees, and refugees. If this restriction applies to the CARES Act programs, some categories of aliens who have work authorization and are generally eligible for regular UI benefits would not qualify for them. Examples include DACA recipients, TPS holders, and many applicants for asylum.
Executive branch agencies have determined that another federally funded unemployment benefit— Disaster Unemployment Assistance (DUA)—is restricted to “qualified aliens” under PRWORA. And on at least one occasion, in 1998, the Department of Labor expressed the same conclusion with respect to all UI benefits paid in part with federal funds. Yet there’s a dearth of federal caselaw to confirm that conclusion, and more recent Department of Labor (DOL) guidance about alien eligibility for UI does not mention PRWORA. Also, specific language in the CARES Act, such as the provision that makes Pandemic Unemployment Assistance available to people who are “not eligible for regular compensation or extended benefits under State or Federal law,” might be interpreted to override PRWORA. Future DOL guidance about the CARES Act could clarify the agency’s position on this issue, although the DOL guidance issued thus far does not address it.
Many holders of nonimmigrant work visas, such as H-1B visas for specialty occupations and L visas for intracompany transferees, face a unique bar to eligibility for unemployment benefits. If PRWORA applies to benefits under the CARES Act, such nonimmigrants would not be eligible because they are not “qualified aliens.” But even under the baseline work-authorization requirement for regular UI under FUTA, many nonimmigrant workers do not qualify under the case law in some states because they’re not considered “able and available to work” when they are unemployed. The terms of their visas authorize many nonimmigrant workers to work only for a single employer. Losing a job with that employer therefore means losing their work authorization, under the analysis of some state cases. Even though H- 1B and some other nonimmigrant workers have flexibility to change employers, federal law requires the new employer to file a new visa petition before the employee may work (and for some visa categories, the petition must be approved first). Thus, the analysis goes, if a nonimmigrant worker has lost a job and does not have a new visa petition filed by a new employer, the worker is not “able and available” to work and does not qualify for benefits.
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Takeaway. The specific UI benefits made available under the CARES Act are federally funded and might therefore be restricted to “qualified aliens” – a term that PWRORA defines to exclude unlawfully present aliens as well as some aliens whose presence is authorized. Even so, states may continue to grant regular UI benefits to aliens with work authorization, but alien eligibility for such regular UI benefits may vary. For example, under the case law of some states, nonimmigrant workers whose visas allow them to work for only one employer may not qualify for regular UI benefits upon being permanently laid off.
Note about Public Charge
An alien’s receipt of the recovery rebate or unemployment compensation is not to be factored into determinations made under the new Department of Homeland Security (DHS) public charge rule about whether the alien is ineligible for LPR status due to likely future dependence on public benefits. That’s because neither type of benefit appears in the exclusive list of benefit types that count as “public benefits” under the rule. In the preamble to the rule, DHS explained that it considers unemployment compensation an “earned benefit” not appropriate for public charge consideration. DHS also explained its decision not to consider other types of tax credits under the rule, such as the Earned Income Tax Credit and the Child Tax Credit: “DHS is not including tax credits because many people with moderate incomes and high incomes are eligible for these tax credits, and the tax system is structured in such a way as to encourage taxpayers to claim and maximize all tax credits for which they are eligible.” That said, DHS could amend the rule in the future to add new types of benefits to the list of those considered for public charge purposes, but it seems unlikely to do so for unemployment benefits and tax credits given these recent statements. (On a related note, DHS has stated that “medical treatment or preventive services” related to COVID-19 “will not negatively affect any alien as part of a future Public Charge analysis.”) Also, in the past, when DHS has changed the public charge regulations to bring more benefit types under consideration, it has not made those changes retroactive.
Potential Delays in Passport Processing U.S. Embassy Madrid, U.S. Consulate General Barcelona (7 April 2020)
Location: Spain – Level 4: Do Not Travel
Event: Because of public health measures to prevent the spread of COVID-19, on March 20, the U.S. Department of State began to limit its passport operations. Effective April 2, the Department of State further limited its passport operations. This may affect processing of non-emergency passport and Consular Report of Birth Abroad applications that were accepted at the U.S. Embassy in Madrid, the U.S. Consulate General in Barcelona, and the five consular agencies in Spain.
If you have applied for, but not received, a passport or Consular Report of Birth Abroad in Spain, please contact us by email – we may be able to issue an emergency passport. You may apply for an emergency passport in either Madrid or Barcelona with a prior appointment. U.S. citizens with immediate travel plans to the United States who do not have a valid passport, but have some form of government-issued identification, may ask their airline for assistance boarding their flight at the airport.
Actions to Take:
-To make an appointment for an emergency service in Madrid, email askACS@state.gov.
-To make an appointment for an emergency service in Barcelona, email BarcelonaACS@state.gov.
-Call Spanish emergency numbers 112 and 061 right away if you believe you may have COVID-19 (or similar symptoms). For a list of local COVID-19 emergency numbers, please visit this website.
-Visit the Spanish Ministry of Health website for updated information (click here for general information in English) about COVID-19.
-Visit our Embassy webpage on COVID-19 for information on conditions in Spain.
Message to U.S. citizens living in germany and abroad regarding COVID-19 and voting in Primary
Enroll in Smart Traveler Enrollment Program (STEP)to receive health and security updates and to ensure the State Department can locate you in an emergency.
Are you a U.S. citizen in Germany with a question on safety or travel during COVID-19? Are you a German citizen who is curious about visas or travel to the United States currently? We want to hear from you! Please send us your question via this form - it's anonymous. Thanks in advance for your input!
International commercial flight options currently exist from Germany. United Airlines and Lufthansa still have some direct flights from Frankfurt to destinations in the United States. Flights should be booked directly through United or Lufthansa. Additional flights to the United States may be possible through connections in Amsterdam, Paris, or London. The U.S. government does not anticipate arranging repatriation flights from Germany at this time.
U.S. citizens living overseas can vote absentee in their state’s upcoming election, no matter where they are. The Federal Voting Assistance Program (FVAP) continues to monitor the COVID-19 pandemic and the potential impact it may have on the election cycle. For additional information on potential changes to your state’s primary election and how to vote absentee, visit FVAP.gov/COVID-19.
Visit our website for the latest information about COVID-19.
The U.S. Embassy in Berlin and Consulates General Frankfurt and Munich are only offering emergency services. All routine consular services remain suspended.
For emergency American citizen services, including emergency passports, please contact the Embassy or appropriate Consulate General:
U.S. Embassy Berlin
+49-30-8305-0 (business hours)
+49-30-8305-0 (after hours)
U.S. Consulate General Frankfurt
+49-69-7535-0 (business hours)
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U.S. Consulate General Munich
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State Department – Consular Affairs
888-407-4747 or +1 202-501-4444
Country Information - Germany
Enroll in Smart Traveler Enrollment Program (STEP) to receive security updates.
MANY IMMIGRANT DOCTORS WANT TO FIGHT THE CORONAVIRUS BUT U.S. VISA RULES MAKE THAT ILLEGAL
SHANTANU SINGH IS an experienced critical care physician who is also trained in pulmonology — the medical specialty that deals with lungs. In short, he is exactly the kind of doctor who is desperately needed on the front lines of the coronavirus epidemic right now. While New York City hospitals are overwhelmed, with patients dying in makeshift emergency rooms and remaining on gurneys awaiting hospital beds for more than a day despite being extremely sick with Covid-19, in Huntington, West Virginia, where Singh lives and works, the virus has yet to wreak havoc. Because his schedule gives him 15 days off in a row, he could easily travel to New York or another area to help out without even taking time off from his job. And Singh would like to help. “It’s what I’m trained to do,” he said.
But it is illegal for Singh to travel to one of the places that desperately need his help combating the novel coronavirus. Even though he did his medical training and works as a doctor in the U.S., because he was born in India, Singh cannot heed the calls for physicians coming from New York City and other parts of the country that have been hardest hit by Covid-19. His “exchange visitor” visa, a type known as a J-1, leaves him unable to do paid work or even volunteer for any hospital other than the one that sponsored his visa.
“My skills are not being used in this country,” he said.
Singh is not alone. The U.S. has more 10,000 physicians who were trained in the U.S. but are unable to work for any hospital other than their current employer because of visa restrictions, despite the historic public health emergency.
More than one-quarter of physicians in the U.S. are foreign-born. Among trainees in pulmonology and critical care medicine — the specialists most needed to combat this coronavirus, which ravages the lungs — more than 40 percent are born outside the U.S. Yet many of these doctors — more than a third of those practicing in this country who graduated from international medical schools — have either exchange visitor visas or other types of visas for temporary workers like the H-1B that limit their ability to work.
Green cards are allotted by country, and there is a particularly long wait for permanent residency cards for Indian citizens. Three-quarters of skilled workers waiting for green cards are from India. That translates to more than 700,000 people, according to a policy brief published last week, some 200,000 of whom are expected to die of old age before being granted green cards. In the meantime, while they live with restrictions on both their employment and mobility, many Indian physicians are doing essential medical work in underserved and rural areas throughout the U.S.
The green card backlog, which has been a chronic frustration for Indian-born doctors, is particular vexing during the pandemic. Both New York Gov. Andrew Cuomo and New York City Mayor Bill de Blasio have recently made desperate pleas for anyone with relevant medical skills to immediately enlist in the fight against the coronavirus. Even elderly doctors, who are particularly vulnerable to Covid-19 because of their age, have come out of retirement to help combat the outbreak.
“We’re watching as people trained as urologists or orthopedic surgeons are stepping up,” said Ramakrishna Yalamanchili, an internist practicing at Logan Regional Medical Center in Logan, West Virginia. “They’re even putting medical students on the front lines.” Like Singh, Yalamanchili is Indian, well-trained to do coronavirus treatment, and eager to travel to help fight the outbreak. “I want to go and volunteer where they need us,” he said, adding, “We want to help prevent the spread before it comes here.”
Yet Yalamanchili, who is on an H-1B, a type of temporary worker visa for specialty occupations, is not only unable to travel to work in any of the coronavirus hot spots — because of the strict rules that allow physicians to work only in the department that sponsors their visas, “we cannot even help within our own hospital if it’s for a different department,” said Yalamanchili. While he frets about his inability to use his skills to help the country, he also worries he may ultimately be unable to help his wife. “What if, God forbid, I get sick with Covid and something happens? She’ll be deported back.”
The bureaucratic obstacles to foreign-born doctors who are eager to help but unable to do so could be quickly eliminated, according to the Society of Hospital Medicine. The organization wrote to House Speaker Nancy Pelosi, Senate Majority Leader Mitch McConnell, and others last week asking them to “act now” to give the 10,000 immigrant doctors who have trained in the U.S. and are now caught in the green card backlog permanent resident status, explaining that the move would “give these providers and their families peace of mind while putting themselves at risk in caring for our nation’s populace.” The group also requested that clinicians on H-1B visas be granted permission to work in hospitals that have not sponsored their visas and an automatic extension of their visas.
Even if they do immediately change the rules, the ability to deploy these desperately needed doctors will come too late for some. Almost 10,000 people in the U.S. have already died from the coronavirus — a number that is likely a vast underestimate due to the ongoing lack of testing. As the number of new infections continues to climb and physicians on the front lines are increasingly overwhelmed both by their work and by the virus itself, which will infect untold numbers of health care workers, the shortage of doctors prepared to do the kind of medicine that coronavirus patients need will only grow and contribute to the devastation.
For Paavani Atluri, watching the pandemic unfurl from Coos Bay, Oregon, is painful on multiple levels. “It is emotionally and ethically taxing,” said Atluri, a physician who was born in southern India and did her medical residency at Monmouth Medical Center in New Jersey — an area she now considers home. The hospital where she works has been working hard to support doctors and brace for the impact, but there has been only one confirmed Covid-19 case in surrounding area of coastal Oregon, and it was well controlled. Meanwhile, the virus is exploding in parts of New Jersey. And Atluri has heard from former colleagues there who are pressed to their personal and professional limits by the pandemic.
“One friend from Pakistan who is doing her third year of residency just lost four patients in a shift,” she said. “If I were not born in India, I would have had my green card now and could be there helping.”
If the policy changes, Atluri said she will help out wherever and however she is needed. After that, her plans are less clear. Even before the coronavirus, she had found it increasingly difficult to practice medicine in the U.S. “The pandemic has made it worse,” said Atluri, who cited the lack of protective equipment and testing along with the strict visa limitations among her most pressing disappointments. “We say that the U.S. has the most advanced health care system,” she said. “But looking at how we’re not able to treat doctors better, it makes me think about leaving.”
Sharon Lerner, The Intercept, April 6, 2020.
On March 18, U.S. Citizenship and Immigration Services temporarily suspended in-person services at its field offices, asylum offices, and application support centers (ASCs) to help slow the spread of coronavirus (COVID-19). USCIS offices will begin to reopen on May 4 unless the public closures are extended further. Employees in these offices are continuing to perform mission-essential services that do not require face-to-face contact with the public.
USCIS will continue to provide limited emergency services. Please call the Contact Center for assistance with emergency services.
USCIS field offices will send notices to applicants and petitioners with scheduled appointments and naturalization ceremonies impacted by the extended temporary closure. USCIS asylum offices will send interview cancellation notices and automatically reschedule asylum interviews. When the interview is rescheduled, asylum applicants will receive a new interview notice with the new time, date and location of the interview. When USCIS again resumes normal operations, USCIS will automatically reschedule ASC appointments due to the temporary office closure. You will receive a new appointment letter in the mail. Individuals who had InfoPass or other appointments must reschedule through the USCIS Contact Center once field offices are open to the public again. Please check to see if the office in your jurisdiction has been reopened before reaching out to the USCIS Contact Center.
Education and precautions are the strongest tools against infection. Get the latest facts by visiting the Centers for Disease Control and Prevention’s COVID-19 website. Continue to practice good health habits, refrain from handshakes or hugs as greetings, and wash hands and clean surfaces appropriately.
USCIS will provide further updates as the situation develops and will continue to follow CDC guidance. Please also visit uscis.gov/coronavirus for updates.
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