FAQ: COVID-19 and Immigrant Communities

KEY CONCERNS FOR DACA RECIPIENTS

Q: USCIS offices have closed – what does this mean for DACA renewals?

U.S. Citizenship and Immigration Services (USCIS) temporarily suspended routine in-person services on March 18, 2020, to help slow the spread of COVID-19. Applicants for DACA renewal typically must have an in-person biometrics appointment to receive their work authorization. However, USCIS announced in late March that it would accept previously submitted biometrics for DACA renewal applicants whose appointments were scheduled for March 18 or later and continue processing work authorization extensions using previously submitted biometric information.

United We Dream and the NEA are calling on President Trump and the Department of Homeland Security (DHS) to automatically renew DACAs that are set to expire this year, as the USCIS closures will delay processing DACA renewal applications. [1]

Q: The U.S. Supreme Court is expected to issue a DACA decision soon. When is that likely to happen, and what might it say?

The U.S. Supreme Court is currently closed to the public due to COVID-19. The court issued an order extending some deadlines (but none that apply to the DACA case). It is still open for official business and has continued to issue opinions. Before the pandemic, the court was expected to issue a DACA opinion by the end of June. At the end of March, several plaintiffs wrote a letter to the court arguing that the pandemic underscores how important DACA recipients are to the country and that DHS had not adequately considered this.[2] The court did not accept the letter for filing, saying it was improper under court rules.[3]  On April 2, the plaintiffs responded by filing a supplemental brief on the topic, together with a request that the Court accept the brief. As of April 9, the Court had not ruled on whether to accept it.

While the exact timing of the DACA decision is still unknown, many court observers believe some cases may be held over until the next term. Here are the four most likely possible outcomes of a DACA decision:

• The court rules in DHS’s favor, concluding that the original creation of DACA was illegal.
• The court rules in DHS’s favor, concluding that the way DHS rescinded DACA was legal.
• The court rules in favor of the numerous plaintiffs, deciding that the way DHS rescinded DACA was illegal. In that case, the court would likely order DHS to start accepting new DACA applications, in addition to processing renewals.
• The court could determine DHS’s decision is unreviewable, leaving intact DHS’s decision to rescind the program.

PUBLIC CHARGE RULES & ACCESS TO HEALTH CARE, UNEMPLOYMENT BENEFITS OR STIMULUS PAYMENTS

Q: Who can access COVID-19 tests or treatment? How does the “public charge” rule impact students and families?

In January 2020, the U.S. Supreme Court ruled that DHS could implement its new public charge rule while litigation continues.  DHS changed its rule related to the public charge basis of inadmissibility, redefining “public charge” to include an individual receiving one or more specific public benefits for a period of 12 months during a 36-month period. Receipt of such benefits could be grounds for denial of visas or admission to the country. For most individuals, Medicaid counts as a public benefit.  The rule went into effect on February 24, 2020.  USCIS has stated that receiving COVID-related tests and treatments will not impact a noncitizen’s public charge determination, even if through Medicaid or another designated public benefit.[4]

However, the stimulus bills passed thus far may exclude significant immigrant communities from eligibility for COVID-19-related care. Much of the COVID-19-related care is provided through Medicaid. Unfortunately, Medicaid has very strict eligibility requirements for immigrants. Many immigrants, including many with lawful status who would qualify for Medicaid based on their income or other characteristics, are ineligible due to their immigration status. However, immigration status is not a barrier to receiving services designated as Emergency Medicaid. Unless such testing and treatment are considered emergency services under Medicaid, many immigrants will remain ineligible.  Moreover, the public charge rule’s definition of public benefits does not include treatment for emergency medical conditions.

Leaving out some communities leaves all communities at greater risk. NEA is calling upon elected officials to ensure that emergency response measures to COVID-19 guarantee all persons are able to receive free testing and COVID-19-related care.

Q: Many teachers are applying for unemployment benefits. Could that affect their DACA status or H1B visas?

Receiving unemployment benefits should not impact anyone’s DACA status.[5] The application for work authorization that accompanies a DACA application requires information about an applicant’s current financial status, including income.  Someone receiving unemployment and applying to renew DACA would likely need to include that on their application. Because the DACA program, including work authorizations, is discretionary, DHS could consider receipt of unemployment benefits as a negative factor, but it has not given any indication that it will.

Similarly, receiving unemployment benefits for a short period of time should not impact educators’ H1B visas. Applicants for H1B visas must show that they have not received public benefits for 12 out of the last 36 months (the “public charge” rule).[6] However, unemployment benefits do not count as public benefits.[7] But a longer period of unemployment would threaten the status of an employee’s visa, primarily because the individual would no longer have an employer to sponsor the visa.

Q: Regarding payments to individuals under the stimulus packages, who is eligible and how is this impacted by DACA or immigration status?

DACA recipients and Temporary Protected Status (TPS) holders with a valid Social Security number (SSN) may be eligible for a one-time stimulus payment (up to $1,200 per individual, $500 per child or $2,400 per family).

Undocumented individuals who do not have an SSN and income tax-paying immigrants who are “non-resident aliens” (non-citizens who do not pass the green card or “substantial presence” tests used to determine tax status) are excluded from receiving these stimulus payments. Mixed-status families who file federal taxes as head of household (for example, they file as married or claim one or more dependents) are not eligible for stimulus payments if at least one individual does not have a SSN.

IMMIGRANT DETENTION

Q: Has Immigration and Customs Enforcement (ICE) changed its detention practices given the pandemic?

ICE identified 550 individuals who were over the age of 60 or pregnant, and released about 160 of them. ICE is continuing to identify other vulnerable individuals in custody.  ICE has also limited the number of individuals it is taking into custody. But individuals who are elderly, pregnant and at-risk continue to be detained.[8]

To protect the health and safety of detainees, government employees and the public, DHS should immediately cease all civil immigration enforcement activities and release all people from detention in order to mitigate the incredible risk to those in detention, staff, and the wider public. Public health experts have spoken resoundingly to this point: DHS does not need more funds, it needs to stem the inflow of people into its custody and release as many immigrants as possible. ICE and CBP have full authority to engage in releases pursuant to its humanitarian parole authority.

Advocates have pushed ICE to release certain immigrants with underlying medical issues and to scale back arrests, saying detention facilities were ripe for mass infections and casualties. There are currently more than 34,000 immigrants in ICE custody at private and local jails.