The COVID-19 pandemic is spreading and will —it likely has already — put the economy into recession. Our immigration system is poorly designed for immigrants to weather this kind of crisis. Unless the administration and Congress make immediate policy changes, many legal immigrants and guest workers will lose their status and be required to leave the country, devastating families, but also thereby endangering public health, retarding economic recovery, and increasing illegal immigration.

The American immigration system adds many more people to the green card queue each year than it grants green cards. The result is an ever-expanding green card backlog and ever-lengthening waiting times. We at the Niskanen Center have been critical of this bottleneck in normal times, but the fallout from COVID-19 makes the existing and impending backlog disastrous. 

A high-skilled worker’s pathway to a green card is arduous enough in normal circumstances. An H-1B visa allows them to work for up to six years, during which time their employer can petition for an employment-based immigrant visa. If that petition is approved, then the immigrant must wait patiently, renewing their H-1B in three-year increments until a green card becomes available for them.[1] This waiting period takes many years on average — even decades for certain immigrants from countries affected by per-country caps. 

While in this holding pattern, the immigrant must retain their H-1B status in order to get their green card, even if the coronavirus makes doing so difficult or impossible. 

Using the most recent data available from U.S. Citizenship and Immigration Services on approved I-140 petitions and economic projections from the St. Louis Fed, a back-of-the-envelope calculation suggests that as many as 125,000 legal immigrants already working in the United States may fall out of status and be forced to return home because of the coronavirus by the end of June.[2] More than a quarter of those will have been waiting “in line” for over a decade for a green card. If we included  H-1B holders who may intend to become permanent residents, but who do not yet have approved immigrant petitions, the total number of would-be legal immigrants working here who may lose status and have to depart would likely more than double to over a quarter of a million.[3]  

These immigrants have spent years and even decades building their lives and setting down roots in the United States, following the arduous road laid out by our immigration laws. The harms extend beyond their own futures. Family separation will result as U.S. citizen children are forced to stay behind because of COVID-19 travel bans in the home countries of their parents. People will be forced to choose between becoming illegal immigrants by overstaying their visas or endangering public health by violating social distancing in departing. When recovery can finally start, businesses and teams who relied on the talents of these individuals will be handicapped.

There are rapid regulatory policy changes that can be made to avert this looming disaster, including that: 

  • The Department of Homeland Security should temporarily extend the 60-day grace period for unemployment under 8 CFR 214.1(l)(2) indefinitely, or to a minimum of 270 days. Current regulations allow an H-1B worker who faces cessation of employment 60 days to find another employer with an H-1B-eligible job opening. This rule ensures under normal economic conditions that H-1Bs are not held by those who have left the labor market or are in long-term unemployment. However, this time span is woefully inadequate in the face of social distancing, government-mandated business closures, and delays in processing. Temporarily extending the grace period indefinitely (until the crisis is over), or short of that, to 270 days, would mitigate the unintended consequences of a grace period policy that is only appropriate under normal circumstances. The regulation does not allow officials to grant discretionary extensions (though it does allow them to shorten or eliminate the grace period), so fixing it would require a new rule to go into immediate effect.
  • DHS should temporarily extend the 10-day grace period  for workers to leave the country after the expiration of their visa under 8 CFR 214.1(l)(1). A guest worker whose status expires during this crisis and who complies with this rule as written could pose a public health risk. Extending this period ensures that workers can abide by both immigration law and current public health directives where they reside.
  • DHS should temporarily extend the 240-day rule and temporarily defer automatic termination of status under 8 CFR 274a.12(b)(20). Nonimmigrants who have lost status while their application to extend their visa is pending are allowed up to 240 days to continue working while their petition is adjudicated, but coronavirus might mean greater processing delays. And if their petition is denied, current procedure has their status immediately terminated, requiring they leave immediately, even if it poses a public health risk. This change would ensure workers can obey public health directives without falling into unlawful presence by putting off the termination of status until after the crisis has elapsed.
  • DHS should automatically grant a 270-day voluntary departure period for workers who fall out of status. While the above changes are intended to prevent most workers from falling out of status because of the economic fallout of the pandemic, it will not help all of them — and if those changes are not adopted, this one is even more important. It is imperative that those aliens can return to their countries on a timeline consistent with the necessities of public health. 
  • The Department of Labor should grant a conditional, temporary exemption to 20 CFR 655.731(c)(7) for guest workers in “nonproductive status” from compliance with coronavirus-related public health directives. While employers would ideally be able to continue paying guest workers through the crisis, an employer who is forced to furlough workers during the pandemic should not endanger any worker’s immigration status in the process. Exempting guest workers from the requirement that they be drawing a wage  — on the condition that the employer does not apply furloughs on a discriminatory basis and is treating natives and guest workers similarly — ensures that employers can make necessary temporary decisions that do not permanently end their relationship with a worker. 
  • DHS should defer Optional Practical Training end dates until after the crisis. OPT is the program that offers foreign students on-the-job training as part of their educational experience in the United States after they graduate. These young people need flexibility for their training experience, just as other foreign workers. And, OPT is often a pipeline into H-1B and eventually to an immigrant visa. Deferring end dates ensures that future immigrants and citizens are not kicked out of the country because of the coronavirus, and ensures that those who will need to leave can do so at a safe time.
  • Congress should exempt workers who lost H-1B status for coronavirus-related reasons from the annual cap on H-1B visas. The best-hope for a V-shaped recovery will be to remove impediments to returning to the status quo ante. Losses of cap-subject workers need not be a permanent supply shock. 

The coronavirus is set to leave permanent scars on our country. Temporary changes to immigration policy can help make sure we don’t add to them unnecessarily.

[1] Terminological note: Legally speaking, USCIS would designate these individuals as nonimmigrants until they receive a green card. However, under any normal usage, a long-term resident, present in the country, intending to stay permanently, with an approved immigrant petition is an immigrant.

[2] This very rough estimate makes the simplifying assumption that unemployment among H-1B workers would be the same as for the general population, and that H-1B workers would be unable to transfer to another H-1B eligible job within the 60 days necessary to retain status.

[3] While there is no publicly available data on the total number of H-1B workers working in the United States or how many H-1B workers have immigrant intent, we use three years of initial petitions (H-1Bs last for an initial period of three years) and then apply the same assumption about unemployment as above. While many H-1B workers may not in fact have immigrant intent, this figure is still likely to be an underestimate because it does not include any of those who have extended their H-1B status but do not have an approved I-140.