Immigration Perspectives: COVID-19 Edition, Week 7

In the last several weeks, closures of various meat processing facilities in the United States that have experienced significant outbreaks of COVID-19 have put into sharp relief the challenges of maintaining our agricultural food supply chain while ensuring worker safety and protection. This week the White House stepped into the fray, with President Donald Trump issuing an executive order under the Defense Production Act delegating to the Agriculture Secretary Sonny Perdue the authority to “ensure the continued supply of meat and poultry” and that processors will continue operations “consistent with the guidance for operations jointly issued by [the Centers for Disease Control and Prevention] and [the Occupational Safety and Health Administration].”

This move comes as concerns about COVID-19 in these plants comes to the fore. Meat and poultry processing companies have been criticized for continuing their operations without providing sufficient protective equipment, including masks, to their employees and not ensuring social distancing at the plants. A total of 15 plants had been closed by the major operators over the last weeks, affecting an estimated 25% of all beef and pork in the country. Outbreaks occurred at more than 30 plants, with at least 3,300 workers contracting the virus and 17 reported deaths.

Immigrants make up a significant portion of workers across agriculture and in food processing more than a quarter of workers are foreign born, according to the Government Accountability Office. The industry has faced its share of immigration enforcement, including major raids on plants in Mississippi in August 2019. In the current concern over coronavirus, however, the president’s order designates the industry as critical and the workers needed to keep the plants open will be considered essential. Consequently, ensuring their safety and the food supply’s stability will require significant effort to protect the workers, including ensuring adequate protection and access to health care, something many immigrant workers don’t have.

Trump has made opposition to so-called “sanctuary cities” a centerpiece of his campaign in 2016 and his presidency. His earliest executive orders ordered his agencies to withhold federal funds from jurisdictions that do not share information on immigrants in custody with federal enforcement agents. He upped the ante last week by stating in answer to a question about federal assistance to states and localities facing shortfalls in their budgets because of the economic fallout from COVID-19 that he would “have to talk about things like sanctuary cities” if he were to consider such assistance.

The Trump administration has had mixed success in enforcing bans on federal funding to sanctuary jurisdictions. In cases filed against the administration by local governments in Chicago, Philadelphia, New York, and Los Angeles, federal courts and appeals courts have largely ruled that unless Congress specifically stipulates that funds are conditioned on immigration cooperation, the Justice Department cannot unilaterally add such a condition. In late February 2020, however, the Second District Court of Appeals in New York overturned a lower court decision and allowed the imposition of these requirements for jurisdictions within its region. The Justice Department had also sued the State of California over its state sanctuary law and has filed a petition with the Supreme Court to hear an appeal of a ruling by the 9th Circuit against it in that case.

While those cases were about additional requirements on existing congressionally authorized state and locality grants, the president seemed to be speaking about proposed assistance to states and cities that has not yet been passed by Congress. Consequently, it is more about staking a negotiating position than actually imposing any requirements. Congress may approve such a requirement but we would presume such a requirement would also be challenged in court given the plethora of existing lawsuits over this issue. A legal challenge would continue the pattern of litigation against the administration’s immigration policies that began in January 2017 with the first travel ban. As they say on TV: To be continued…

Immigrants form a large portion of the health care workforce currently combatting COVID-19, but delays and backlogs in adjudications caused by the closure of many U.S. Citizenship and Immigration Services offices could put their status in jeopardy, adding another worry to their already anxious daily life. Additionally, many others whose status in the United States depends on jobs that may no longer exist could face a dilemma of being required to leave the United States after years, but being unable to travel due to closed borders due to the pandemic.

Almost 3 million of the country’s 10 to 12 million health care and social workers are foreign born, making up more than 16% of the total workforce. Immigrants are more than 28% of all physicians, 15% of all nurses and more than 25% of all health aides. 13% of all respiratory therapists are foreign born. In many major cities, they make up a quarter of health care employees. Many of them are on temporary nonimmigrant visas or are working their way toward a green card, but risk losing status as the coronavirus has stalled visa processing by USCIS. Graduates of foreign medical schools completing residencies in the United States and foreign students graduating U.S. medical schools on student visas must transition to an H-1B visa to continue working in the United States. 11,000 foreign students are set to finish U.S. residencies in 2020 and many will be sponsored by hospitals desperate for additional help in this current time.

However, backlogs in case processing at USCIS can mean months of delays, risking their ability to work. Even doctors who have already received their H-1B status can risk it if they stop working due to contracting COVID-19 or their visa renewals aren’t processed in time by a backlogged agency. If they pass away due to the disease while helping others, their families immediately lose status and must leave, even if they have been in the United States for decades.

Doctors and health care workers aren’t the only ones whose visa status is in jeopardy. Medical workers whose practices have closed down due to shelter in place orders or others who have spent decades waiting in green card lines risk losing everything if their employer shuts down or eliminates their job entirely. This could affect as many as a quarter of a million immigrants who have been following the rules and trying to make lives for themselves and their families. Some may be unable to return home due to travel restrictions imposed due to the pandemic.

The economic effects of the coronavirus shutdown are being felt across the country and in many American households. Immigrant families are not being spared, and, in many cases, their efforts to make this country home could find an end due to the pandemic.