Covid-19 Update for Germans Residing In The United States

These are unsettling and complex times for everybody. Routines have been interrupted, businesses have come to a halt, business owners are in survival mode, employers are making decisions on how to handle payroll, and employees face potential unemployment.

In this brief overview, we intend to provide you with a few FAQs and resources. These reflect a variety of questions and concerns from the German – American community that we have received in the last few weeks. The FAQs provide only general information. Each case is different, and the FAQs do not replace legal advice. The information in the FAQs is valid as of April 1, 2020. We hope they are helpful to you. And, one more note: this sure will pass!

1. I filed my N-400 and I’m scheduled for my naturalization interview. Can I go?

You most likely have already received a cancellation of some sort from USCIS. Effective March 18th, 2020, USCIS in-person services has been temporarily suspended. This means that no Naturalization or Adjustment of Status interviews, no biometric appointments, oath ceremonies etc. will take place See: https://www.uscis.gov : On March 18, U.S. Citizenship and Immigration Services temporarily suspended routine in-person services to help slow the spread of Coronavirus 2019 (COVID-19). USCIS plans to begin reopening our offices on May 4, 2020, unless the public closures are extended further. USCIS staff are continuing to perform duties that do not involve contact with the public. However, USCIS will provide emergency services for limited situations.

On March 30, 2020 USCIS announced that, for persons who had (a.) an appointment for scheduled biometric appointments on or after March 18th, or (b.) filed an I-765 extension, it will use previously submitted biometrics for applicants.

2. Is the premium processing service by USCIS still available?

No. Effective as of March 20, 2020 USCIS has temporarily suspended its premium processing service. See: https://www.uscis.gov/working-united-states/temporary-workers/uscis-announces-temporary-suspension-premium-processing-all-i-129-and-i-140-petitions-due-coronavirus-pandemic

“U.S. Citizenship and Immigration Services today announced the immediate and temporary suspension of premium processing service for all Form I-129 and I-140 petitions until further notice due to Coronavirus 2019 (COVID-19) (…)

In plain words, this only means that for now the premium processing service (adjudication within 15 calendar days) is not available. However, Petitions for Non-Immigrant Workers (Form I-129) and Immigrant Petitions for Alien Workers (I-140) can still be filed. Those petitions will still be processed, but they will not be adjudicated within 15 calendar days. So, do not pay the premium processing filing fee.

3. Has USCIS ceased all its services? Should I file now?

USCIS, as of now, is still processing regularly filed petitions and application. That means you still can file your Application for Naturalization, L-1 Extension, or any other petition or application. Even so, there might be delays due to the temporary halt on in-person- services. But, by getting ready to file or by filing now, you might get ahead of the anticipated spike in applications after the COVID-19 crisis has passed. So, by filing sooner rather than later, you might get ahead of the curve.

4. I am a Green Card Holder. Am I allowed to travel?

On March 11, President Trump signed a proclamation that restricts travel to the United States from foreign nationals who have recently been in certain European countries.  This does not apply to U.S. citizens or legal permanent residents.  There are additional other exceptions, that can be found here (see Section 2): https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-certain-additional-persons-pose-risk-transmitting-2019-novel-coronavirus/).

Note: On March 14th, 2020 UK and Ireland were added. See the proclamation here: https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-certain-additional-persons-pose-risk-transmitting-coronavirus-2/

You can find a German translation (DEUTSCHE VERSION) of the proclamation dated March 11, 2020 here: https://de.usembassy.gov/de/aussetzung-der-einreise-von-weiteren-personen-die-ein-risiko-fuer-die-uebertragung-des-neuartigen-coronavirus-von-2019-darstellen/

5. My family and I hold E Visas. Does the proclamation apply to us too?

Yes, the travel proclamation applies to you too. The proclamation excludes E-1 employees of TECRO and their families. So, if you leave the U.S., your status as an E visa holder does not make you an LPR. Unless another exception applies in your case, you will not be able to return to the States until the travel ban is lifted.

6. I entered the U.S. with ESTA. I can’t get a return ticket back to Germany and my authorized stay in the US will soon expire. What do I do?

As a general rule, individuals admitted under Visa Waiver Program (VWP) / ESTA are not allowed to extend their status. At first, USCIS’ only guidance came out for travelers who were admitted through JFK or Newark airports. Those individuals were allowed to request a “Satisfactory Departure,” which allowed up to 30 additional days to leave the US. Such requests were to be made at the Deferred Inspection office at the JFK Deferred Inspection office. If the traveler’s admission period had already passed, a decision was to be made on a case-by-case basis.

On March 30th, 2020 USCIS’s Miami office announced a similar process for travelers who entered through Miami. However, Miami’s announcement states that the application must be made before the traveler’s admission period has passed. Similar processes are now in place at various other U.S. airports.

7. I’m in the U.S. on a B-1/B-2 Visa and my period of admission is about to expire. I can’t get a flight back to Germany. What do I do?

You may need to file an application for extension of status. If you stay in the U.S. longer than your period of admission (as shown in your Form I-94), you are considered an “overstay”. This may have additional consequences for your future travel to the U.S., or future requests for visas or immigration benefits.

The term “overstay” is different from the concept of “unlawful presence”. “Unlawful presence” means that you remained in the U.S. for more than 6 months beyond the end of your authorized period of admission. An unlawful presence of between 6 and 12 months triggers a 3 years bar against entry into the U.S. Consequently, if you were present in the U.S. for 6 – 12 months unlawfully and then leave, you would not be allowed to return to the U.S. for 3 years. And, an unlawful presence in the U.S. of 12 months or more triggers an even harsher consequence: you would be barred from re-entering the U.S. for a 10-year period.

8. I did not get a date of admission stamp on my last entry to the United States. How do I know how long I can stay in the U.S.?

We strongly recommend everybody to retrieve their current I-94 online. You can get your most recent Form I-94 and retrieve your travel history on the U.S. Customs and Border Protection (CBP) website. See: https://i94.cbp.dhs.gov/I94/#/home

9. I am a small business owner in Southeast Florida and need financial assistance. Or: I’m a renter and I need assistance. How do I get help?

The U.S. Small Business Administration offers disaster assistance in the form of low-interest loans to businesses, renters, and homeowners located in regions affected by declared disasters. The U.S. Small Business Administration (SBA) offers for eligible small business owners in all U.S. states to apply for a low-interest loan due to COVID-19”. See: https://www.sba.gov/page/coronavirus-covid-19-small-business-guidance-loan-resources#section-header-0 . Renters or homeowners must register with the Federal Emergency Management Agency (FEMA) to obtain a FEMA Registration ID first, before applying for an SBA loan. https://www.sba.gov/page/disaster-loan-applications#section-header-2

10. I’m an E-2 Visa holder and own a small business. Am I eligible to apply for federal assistance too?

You do not need to be a U.S. Citizen in order to qualify for SBA loans. However, USCIS has implemented the so called “Public Charge” rule. In essence, this rule states that an alien who is likely at any time to become a “public charge” is generally inadmissible to the United States and ineligible to become a lawful permanent resident. A public charge is defined as “an alien who has received one or more public benefits, as defined in the rule, for more than 12 months within any 36-month period”. Under current guidance DHS will, among others, not consider any disaster relief a “public charge” see: https://www.uscis.gov/news/fact-sheets/public-charge-fact-sheet.

Even so, any E-2 Investor Visa holder should give careful consideration to the potential consequences that might follow from applying for a disaster benefit. Please contact us on before doing so.

11. I’m a business owner and carry business insurance. Is my loss covered?

This will depend upon the type of policy that you have in place, and the terms of any exceptions from coverage that might apply. Does your policy include “business interruption” or “business income” coverage? In order to determine whether you have coverage, we will need to review your policy.

In general, business interruption insurance policies require a direct physical loss or damage to a property caused by a covered peril (i.e. fire, water damage, etc.) in order for business interruption coverage to apply. Most commercial policies have exclusions for loss due to contamination by virus and similar perils, such as pandemics. Rest assured, many courts will be asked to determine the effect of federal, state, and local “shelter in place” orders on these policies. Insurers may argue that “physical contamination” exclusion applies, even though no one in your business has been infected. Likewise, insurers may take the position that coverage applies only if your business has suffered “physical damage.” On the other hand, many first-party property policies with business interruption coverage contain so-called “civil authority” clauses, which provide coverage for actual losses sustained when access to real property is prohibited by order of civil or military authority.

At this point in the crisis, it is too early to tell how insurers, insurance regulators, and the courts will respond. Even so, business owners and operators should begin taking steps to enforce any rights that may be afforded them under their insurance policies.

12. I have invested in an EB-5 project through a regional center. Will COVID-19 affect my investment?

This question poses both financial and immigration issues. The answer depends on several factors, including the management, strength and liquidity of the EB-5 project in which you invested, the type of regional center that oversees that project, and how the project’s managers respond to the crisis. The answer may also depend on the amount of time during which your EB-5 investment has been “at risk,” and where you are in the process of having your Form I-829 approved.

If it appears that the EB-5 project may experience financial distress or other difficulties that could prevent its completion, EB-5 investors will want to act sooner rather than later to protect their financial and immigration interests. Most importantly, each EB-5 investor or his/her representative needs to evaluate whether there are any actions that could be taken to save the project, so that the EB-5 investor will ultimately qualify for approval of their I-829 petitions. That said, certain restructuring and work-out arrangements have had negative effects with regard to pending I-829 petitions. We have experience representing EB-5 investors in troubled EB-5 projects. Because these evaluations may be very time consuming, we are unable to offer free consultations in this area; however, we may be able to offer assistance at discounted hourly rates.

13. My E-Visa application is currently pending at the US Consulate in Frankfurt. What happens now?

As of March 16th, due to COVID-19, all U.S. Consulates in Germany are providing emergency services only until further notice. See: https://de.usembassy.gov/mission-germany-change-in-operations/

14. My “Beibehaltungsgenehmigung” (retention certificate) is expiring soon, and due to COVID-19 my Naturalization process will be delayed. What should I do?

U.S. naturalization must occur while the certificate of retention remains valid. Otherwise, the certificate holder is at risk of losing German citizenship. At this point, we can expect delays in the processing of U.S. naturalization applications. Therefore, it may be necessary to apply for an extension of the certificate.

In the past, it was possible to request an extension by sending an informal email to the Federal Office of Administration (BVA) or the consulate. Recently, however, the procedure for applying for an extended retention certificate has changed. Please see the information on the following website: https://www.germany.info/us-de/service/beibehaltung-der-deutschen-staatsangehoerigkeit/1216762

If it is unlikely that certificate holder will be naturalized within the two-year period of validity of the retention permit, then we should seek a new application for a retention permit (so-called “Anschlussurkunde”). The application for the retention permit should be submitted at least 6 months before the certificate expires.

The retention permit application must be made in writing and addressed to the BVA in Cologne. It must contain information on the status of the U.S. naturalization procedure. Further, it must include proof that the overall circumstances of your original application for a certificate of retention remain unchanged. The BVA collects an additional fee of EUR 255.00 for the retention permit application.

15. I have heard there is a Registry with the German Consulates in the United States, so that I can be contacted by the Consulate if there is a crisis?
Yes. If you are a German citizen, you can sign up here : https://www.germany.info/us-de/service/04-HilfefuerDeutsche/elefand—deutschenliste/1216386

Signing up is voluntary.

Date of publication 4/1/2020

Ellen von Geyso PA ©