Hurricanes Katrina and Wilma, possibly the worst natural disasters to hit the United States in the last hundred years, are having an immigration impact that is, in many cases, extremely significant. We have read and seen plenty of coverage about the hurricanes generally, but the immigration consequences are only just starting to become apparent.
Government offices and the courts have been closed and the fate of people with applications pending there are not clear. Displaced individuals are facing potentially severe immigration consequences. More than 40 immigration lawyers in the area have been displaced.
This article is devoted to piecing together everything we know about the hurricanes. A lot we still don’t know as government agencies are still developing policies.
In my own practice, the hurricanes have become front and center. I was appointed this week as the chairman of the American Immigration Lawyers Association’s Katrina Task Force. The Task Force is charged with assisting the dozens of lawyers affected by the storm re-establish their practices and we will be leading fundraising efforts to support that effort. Immediately after it became clear how severe the storm was, AILA kicked into action to help its members. The efforts it has gone to – finding its members housing, job offers, office space, supplies, books, and more – should serve as a model to every bar association in the country.
In my local community of Memphis, there are anywhere from 12,000 to 25,000 evacuees (no one really knows for sure how many there are). Memphis has embraced these folks and it seems everyone is doing one thing or another to be helpful. I’m chairing a job placement task force for a non-profit social services agency that I serve as its vice president.
There are many ways readers can help. Obviously, people can donate money and volunteer if they have any of an estimated 1.5 million evacuees in their community. For immigration lawyers, one thing that would be a big help is to volunteer to provide legal assistance to indigent immigrants dealing with consequences of the storm as well as outsourcing work on cases to Gulf Coast immigration lawyers.
Frequently Asked Questions
What disaster assistance is available to immigrants and other aliens affected by the hurricanes?
Many different programs offer disaster assistance to qualified immigrants (usually permanent residents) including food, rental and mortgage assistance, temporary housing allowances, grants for repairs, short-term cash, small business loans and more. The Guide to Immigrant Eligibility for Federal Programs, Revised September 2005 published by the National Immigration Law Center lists the following agencies with an overview of the disaster assistance available to qualified immigrants:
Federal Emergency Management Agency (FEMA) provides:
Temporary housing assistance, or rental payments for persons displaced due to the hurricanes.
Mortgage and rental assistance for economic hardship suffered offered to the hurricanes’ victims who may also face eviction or foreclosure.
Minimal repair money up to $10,000 for homeowners so that they may restore habitability of their homes.
Look for FEMA Disaster Recovery Centers in affected areas.
The Individual and Family Grant Program (IFGP) provides:
Money for repairs, replacement of household items, job essentials, medical, dental and funeral costs in the form of grants to those affected by the hurricanes.
Money for purposes other than medical, dental and funeral for those persons affected by The hurricanes and not eligible for SBA loans, or for those persons who received an inadequate SBA loan.
IFGP is administered through Offices of Emergency Services or similar state agencies
Disaster Unemployment Assistance (DUA) provides:
Cash to replace income for those who are unemployed due to the hurricanes.
DUA is administered through the Department of Labor through state employment agencies.
Food Programs provide:
Emergency food stamps and food are provided to meet emergency needs.
Food Programs are administered through state social services agencies and similar local organizations as a service provided by the U.S. Department of Agriculture.
Small Business Administration (SBA) provides:
Low interest loans for repairs to homeowners and renters as well as to large and small business owners.
National Immigration Legal Center (NILC) has an overview of Immigrant Eligibility for Disaster Assistance on the website at www.nilc.org
Which immigrants qualify for these programs?
“Qualified” immigrants can apply for any of the benefits described above. They include the following groups:
lawful permanent residents
refugees, asylees and certain parolees
battered spouses and children pursuing immigration benefits based on that status
Undocumented and non-immigrant workers in the US are eligible for non-cash, in kind emergency disaster relief such as food and shelter, search and rescue and emergency medical care.
For more information, go to http://www.nilc.org/disaster_assistance/Disaster_Relief.pdf.
Can non-immigrants accept aid from FEMA?
In certain circumstances, non-immigrants may be eligible for relief, including cash relief, if the non-immigrant is displaced from a household that included a person individually qualified for aid as a “household member.” The qualified member of the household must submit the FEMA applications. As we have recently learned, in the case of a Foreign Student with F-1 status, a roommate may be considered a member of a household for the purposes of FEMA relief eligibility.
If I accept emergency assistance, am I at risk of being considered a “public charge.”
No. Accepting assistance will not have a negative consequence on your immigration status unless you fraudulently obtain such assistance.
Will undocumented aliens expose themselves to deportation if they seek help?
Estimates suggest that about 40,000 undocumented Mexicans were living in Louisiana, the majority in New Orleans, at the time Hurricane Katrina devastated the area.
According to an Associated Press report, the Department of Homeland Security has refused to state that undocumented immigrants who seek help will not be arrested and deported (despite making such a statement after 9/11. And Immigrations and Customs Enforcement has stated that ICE officials continue to operate in the affected area (though they state their goal is to preserve law and order).
President Vincente Fox announced last Friday, September 2, 2005, that Mexican and U.S. government officials have agreed those migrants who are not documented, and are affected by the hurricanes, will not be subject to any pressure or prosecution by U.S. officials. The agreement allows those victims who are undocumented to approach authorities and ask for support and aid. But we have not seen any other information about such an impending agreement.
Additionally, temporary foreign consulates will be set up near the disaster area to help Mexicans and Central Americans in need of assistance. Embassies from other countries should also be contacted for advice. Visit www.embassy.org to find the embassy of your country.
Can employers hire an individual who has no personal documents for I-9 Employment Eligibility Verification?
The Department of Homeland Security (DHS) announced on September 6, 2005 that it will refrain from initiating employer sanction actions for the next for 45 days for violations of I-9 Employment Eligibility Verification procedures. U.S. employers are responsible for completing and retaining documents from hired individuals. Regulations require employers to verify employment eligibility and identity through original documents presented by employees.
Due to the losses caused by Hurricane Katrina, many individuals have lost documents required by this procedure. Also, many government agencies in the affected regions have suffered destruction or damage so that many individuals are unable to apply for replacement documents.
The DHS will not enforce this procedure for the next 45 days so that employers can hire individuals evacuated or displaced from affected areas, otherwise eligible for employment, but lacking personal documents. DHS will review this policy at the end of 45 days.
Note that employers are still required to complete I-9 forms for new employees as much as possible but will not be penalized if documentation is not available.
What is the current status of the USCIS offices in New Orleans as well as pending cases?
The New Orleans operations office for the USCIS currently is located in the Memphis, Tennessee Sub-Office. The USCIS New Orleans Office will be fully restored by the end of May in Metarie, LA, a suburb of New Orleans.
The address for the Memphis Sub Office is 842 Virginia Run Cove, Memphis, Tennessee 38134.
Other regional offices servicing USCIS customers are as follows:
USCIS office/ Mississippi
100 West Capitol Street
Jackson, Mississippi 39269
USCIS office/ Arkansas
4977 Old Greenwood Road
Fort Smith, Arkansas 72903
The USCIS established the following points of contact for those in need of assistance in Texas:
Dallas District Office
8101 North Stemsons Freeway
Dallas, Texas 75247
Located between Mockingbird Lane and Empire Central inbound side of I-35.
Houston District Office
126 North point
Houston, Texas 77060
Located in north Houston in Greens point area, approximately five miles south of Bush International Airport.
Contact: Norma Eskimo Lacy (281) 774-5873
San Antonio District Office
8940 Fourwinds Drive
San Antonio, Texas 78239
Located in northeast San Antonio in the cloverleaf intersection of I-35 and Loop 410.
Contact: Jacque Crouse (210) 967-7141
Also, the National Service Center can provide immigration assistance and direction to displaced customers who call 1-800-375-5283.
For the latest information on services provided to USCIS customers affected by Katrina, visit: http://uscis.gov/graphics/katrina.htm.
No filings can be made at Immigration Court in New Orleans and the Board of Immigration Appeals (BIA) has suspended work on cases that originated from New Orleans. At this time, the Executive Office of Immigration Review (EOIR) is working on uniform policy for filings for the regional offices in affected areas and is considering issues such as aging of petitions, filings, deadlines, reconstruction of files and more as they come up.
The Department of State (DOS) will give priority appointments to Family and Next of Kin of hurricane victims. All DOS posts will give humanitarian consideration to applicants and accommodate emergency cases as quickly as possible. This special consideration will be limited to family and next of kin. DOS officers will refer applicants looking for loved ones to the website compiled by FEMA at http://www.dhs.gov/dhspublic. Click on Finding Friends and Information.
What services are currently offered by the USCIS for the New Orleans area?
The USCIS has offered Naturalization, Adjustment of Status and I 751
interviews in the New Orleans area since November in a temporary
location lent by the City of Kenner. The USCIS also has been conducting
interviews since October in Jackson MS for persons living in Mississippi and Northern Louisiana.
Are the records lost from USCIS in New Orleans?
The USCIS has announced that their office in New Orleans was not damaged and that it’s records are intact.
The National Records Center recovered the immigration files from the New Orleans offices and is currently developing procedures for access to these files by offices assisting hurricane evacuees.
What is the current status of the Immigration Court in New Orleans ?
The New Orleans Immigration Court is now operational and will be open to the public on December 19, 2005. The Court is now in the process of rescheduling cases for the 2006 calendar.
Are Naturalization services in process for USCIS customers from the New Orleans district?
Naturalizations are currently performed for Katrina-affected individuals in the Federal Courts in the outlying areas of Baton Rouge, Lafayette, Shreveport, and Jackson, MS. The only area where Naturalization Cases have not been taken to completion at a Naturalization ceremony has been for those persons residing within the jurisdiction of the Eastern District of Louisiana (at New Orleans). Still, on February 3, an Administrative Naturalization ceremony was conducted in Kenner of 20 persons. These ceremonies will continue every week, until early March, at which time the Federal Court will once again begin holding Judicial Naturalization Ceremonies every month. Upon full restoration of the New Orleans office in May, the USCIS will resume administrative ceremonies in addition to the Judicial ones.
What effects did Hurricane Wilma have on USCIS offices and services in the Florida area?
Due to the effects of Hurricane Wilma, the following offices were closed as of 10/25/05:
- Florida USCIS Offices in the cities of Miami, West Palm Beach, Orlando, and Tampa.
- All asylum offices were closed as of 10/25/05.
The InfoPass system did go down as a result of Hurricane Wilma, but is in service again.
No USCIS files were damaged as a result of Hurricane Wilma and no significant damage occurred in any of the USCIS offices.
For all reopening dates and information about the USCIS offices affected by Hurricane Katrina, please visit: http://uscis.gov/graphics/exec/filedoffices/closings/index.asp.
How can affected USCIS customers replace lost immigration documents?
All USCIS offices will assist those affected by Katrina in replacing immigration documents. The USCIS offices will verify identity and immigration status through electronic file data before re-issuing immigration related documents.
When will fingerprinting services be restored to those residing in the Katrina-affected areas?
All information services and fingerprinting services will continue to be conducted out of Jackson until the New Orleans office reopens in May. Individuals required to make fingerprints should make an Info pass appointment. In May, the USCIS New Orleans Office will be on a strict Info pass only basis in the Information Office.
What should J-1 exchange visitors do if their programs have been disrupted by the hurricane?
The DOS advises all J-1 exchange visitors to contact their program sponsors. We do not expect J-1 visa holders will be penalized in any way for the disruption, but have not received further information yet.
What should F-1 or M Foreign Students do if they are currently studying at a school affected by the disaster?
Foreign students should attempt to contact the designated school official if available. If not, contact the SEVIS office at 202-305-2346 or email SEVIS.email@example.com and include date of birth, SEVIS ID# and school information. Foreign students should let the SEVIS officer know if they plan to delay entry until the school is operational, or transfer to another educational institution. New F or M students who were unable to contact their designated school will receive a new report date and new I-20 if the school is operational. Students who transfer to a new school should contact the school directly for the new I-20. This particular transfer will not be subject to a new SEVIS fee. Still, students may need to obtain a new visa that indicates the new school. Students will also not have to pay a new MRV fee.
The Department of State asks that inquiries about foreign students be directed to SEVIS to http://www.ice.gov/SEVIS, which has detailed information for students affected by Hurricane Katrina concerning the following issues:
Residence and money problems
Fall enrollment problems
What issues should be addressed by host schools and closed schools enrolling students affected by Katrina who have student visas now that Fall Semester is coming to a close?
NAFSA: Association of Foreign Educators, in discussions with DHS and the State Department, recently identified issues for the end-of-the term affecting students displaced by Hurricane Katrina. As a result of these discussions, NAFSA officials have released guidance for host schools, closed schools and affected students. First steps to be taken by schools affected by Hurricane Katrina:
Closed Schools - Please check that SEVP has all current information regarding your institution. The SEVP is receiving many undeliverable messages sent by their offices to affected DSO.
Host Schools - Most importantly, extend the program-end date to February 1, 2006 or later. This will decrease chances that data fixes will be required because of the deactivation of a student file. This should be done regardless of whether or not the student will travel abroad over the break and regardless of whether the student will transfer or leave the US completely. This extension will help students who do not finish a degree as planned and will keep the record active without requiring a request to data fix as well as allow Katrina-affected schools the ability to assess student's academic status and issue new I-20s if necessary. If the transfer of the SEVIS record occurs too late for the original school to issue and send the student a transfer I-20, the student can use the extended I-20 to apply for a visa at the US consulate and can use a faxed copy of the transfer I-20 from the original school to re-enter the country.
If possible, host schools should work with Katrina-affected schools to facilitate the transfer in a manner that is most beneficial to the original school and the student.
Transfer of Records - According to SEVP, there is no problem with host schools transferring students back to New Orleans schools before the end of the term, or the student may continue with the temporary host school under the current enrollment provisions. SEVP will suspend normal prohibitions on on-campus employment following transfer of SEVIS records. Katrina-affected displaced students only may continue to work and be paid for the remainder of the term by the temporary host school pursuant to the on-campus provisions even after SEVIS records have been transferred back the original school.
As previously mentioned, schools are instructed to extend the program end date to February 1, 2006, or later.
Both Institutions - Please use the comment/remark fields of the forms to indicate that such forms concern a Katrina-affected student.
Travel - Students traveling need to have an unexpired I-20 from either a host, or closed institution, which clearly indicates a future program end date. Ports have been notified that they should re-admit Katrina affected students with fax copies of I-20s issued by the New Orleans area schools. Faxes will be accepted in lieu of original I-20s until February 1, 2006. Ideally, students should travel with I-20 documents issued by institutions for where they will attend Spring 2006 semester.
Students applying for new visas should be advised that consulates can not issue a visa without an unexpired original I-20. Students MUST have an original I-20, either the extended I-20 from the temporary host school or an original transfer I-20 from the school they will attend in Spring. Normal security checks will apply!
Optional Practical Training - Recommendations for OPT should be made by the school from which the student will receive his/her degree. The original school should work with the student to recommend OPT.
Students Who Left the US Prior to or After Katrina and are Now Returning- Students who left the US and still have active SEVIS records should be given new I-20 documents for travel and should re-enter the US no later than February 1, 2006. Students who have been out of the US for longer than five months, or whose records have been terminated, will need "Initial Attendance" I-20 documents issued and are subject to SEVIS fees unless already paid and the student is re-entering on or before February 1, 2006. Those students who have paid SEVIS fees for a previous SEVIS record should send an email to fmjfee.SEVIS@DHS.gov to request a fee transfer from the old SEVIS record to a new one. Long-time students who were previously exempt from the SEVIS fee, but have been out of the US for longer than 5 months, will now have to pay the SEVIS fee if the SEVIS record has been terminated.
Special Work Permission for Hurricane Katrina Affected Students- Students on campus are automatically eligible for work authorization subject to regular terms/conditions that attach to all students. Those students demonstrating economic hardship may apply for work authorization through the Regional Service Center. Students in this category are subject to the normal conditions except they will not need to show presence in the US for one year. Such students must maintain enrollment and can not work more than part-time while school is in session. Student Special Relief work authorization can be applied for through the Texas Service Center and is valid only through February 1, 2006. This relief allows for full-time employment with a reduced credit load of 6 credits for undergraduates and 3 for graduates.
Out of Status Students - Students who have fallen out of status due to Hurricane Katrina can apply for deferred action preferably with the assistance of a qualified immigration attorney. This step effectively postpones action by the DHS and allows the student to apply for reinstatement. In the alternative, a student may exit the US and return which will reset the clock for practical training, economic hardship applications and more.
Please see the SEVP website for more information on these issues available at http://www.ice.gov/graphics/sevis/Katrina/faq_transfers.htm
What happened to passport applications processed through the New Orleans Passport office?
The DOS announced on September 7, 2005 that all materials in the New Orleans Passport Agency have been collected and transported to another location. These materials include personal documents and applications from individuals applying for passports.
The Bureau of Consular Affairs is in the process of mailing postcards to applicants notifying them of the disruptions and possible delays caused by Hurricane Katrina. Anyone with pending passport applications at the New Orleans Passport Office planning to travel in the next six weeks should contact the National Passport Information Center at 1-877-487-2778.
The DOS has established two offices to help people who need a passport in 14 or fewer days. The emergency office number is 202-663-1822. Those who can wait more than two weeks to get passport may call 1-877-487-2778.
What if I have family impacted by the one of the hurricanes and need to travel to the US as quickly as possible?
The Department of State has announced that consular posts are instructed to expedite visa appointments for immediate family members and next of kin of Hurricane victims and are requested to extend “humanitarian considerations.
What if I lost my job as a result of the hurricane and I am on a non-immigrant work visa specific to that job?
Technically, one must be employed by the sponsoring employer in the typical non-immigrant work visa scenario in order to remain in legal status.
If one is still on the payroll of an employer, then arguably there is no status violation. The worker could argue that the leave was involuntary and applies across the board to all workers so there is no “benching.” And USCIS is expected to take a liberal approach when it comes to people affected by Katrina.
As for terminated workers, we still have no instructions from USCIS. We believe it will accommodating in forgiving status violations caused by the storm and allow late filed change of status applications as workers locate new employment. Regulations permit late filing when there are extraordinary circumstances and this would certainly be the case here.
A possible strategy would be to file to change status to that of a visitor and request a waiver of the requirement to timely file for such a change. Then when a new job is found, apply to change back.
We will advise readers as we learn more.
What if the hurricane causes me to be late in meeting a filing deadline or miss an interview?
We are awaiting information from USCIS, DOS, EOIR and DOL on late filings, but expect each agency to be accommodating. One key deadline is for Diversity Visa applicants who must complete processing by September 30th. AILA is working with each agency on establishing a policy to ensure applicants are not penalized because of the storm.
What forms am I required to file if I am displaced by either of the hurricanes?
All immigrants and non-immigrants are required to submit an AR-11 form each time they move to a new location. USCIS has not commented yet on what to do with respect to AR-11 forms, but the easiest thing to do is just to download the form at uscis.gov and mail it in. If that is not possible, we expect USCIS to be forgiving as long as the requirement is met as soon as possible.
Furthermore, any persons with cases pending at the New Orleans Immigration should have their attorneys file an EOIR-33 if the Respondent is relocated.
What will happen with cases pending in the United States Fifth Circuit Court?
The US Fifth Circuit Court announced that it will shut down temporary operations in Houston, Texas on December 16, 2005. The 5th Circuit Court will reopen on January 9, 2006 at the John Minor Wisdom Court of Appeals Building in New Orleans. The first hearing following Katrina has been scheduled for Wednesday, January 18, 2006 for en banc proceedings and regular panel hearings of the Court will begin in February 2006 continuing thereafter.
Please check filing procedures after Hurricane Katrina posted on the website at www.ca5.uscourts.gov before filing.
True emergency matters, e.g. deportation cases with imminent and confirmed deportation dates, may be filed by fax at 713-250-5050 or mailed or delivered to the following address:
Chambers of Chief Judge Carolyn Dineen King
515 Rusk Street
Houston, Texas 77002
The Fifth Circuit anticipates opening the clerk’s office on September 14, 2005 to handle a broader range of matters. Please consult the website frequently to receive updated information.
Can immigration lawyers displaced by Hurricane Katrina practice law in other states without a license?
Immigration lawyers have always had greater flexibility to practice in other states than where they took the bar examination because immigration law is strictly federal in nature. However, beyond this, state bars in states bordering those directly affected by the hurricane have issued memoranda in recent days making it clear that they will be flexible. A good place to go for more information on this topic is www.helpkatrinalawyers.org.
Texas is a good example of a state that has quickly moved to make things easier. The Texas Supreme Court ordered that displaced lawyers from regions affected by Hurricane Katrina would be permitted temporarily to practice law in Texas.
The Texas Supreme Court also instructed the State Bar to withhold for 30 days suspensions due to nonpayment of fees for Texas licenses for those lawyers from affected regions with Texas licenses. Additionally, late fees will be waived for those applicants from Katrina-affected regions who are planning to take the next Texas bar exam, but did not meet the August 30 deadline.
Since the New Orleans Immigration Court is not operational and attempting to reschedule cases, displaced attorneys should notify the court immediately of their whereabouts. Attorneys should also file the EOIR-33 if their clients are Respondents in a pending case and have been relocated.
Will Congress act to help immigrants facing adverse immigration consequences as a result of the hurricane?
A legislative package is in the works that will address many issues immigrants are facing as a result of the storm. The bill may resemble a similar law passed after 9/11. There are some in Congress who have already expressed hostility and want to ensure that no one is better off from an immigration point of view after the storm than before it. We will report on this as we learn more.
I have had difficulty reaching my lawyer. What should I do?
First, as chair of the American Immigration Lawyers Association’s Katrina Task Force, I have been in contact with most of the immigration lawyers affected by Katrina. Only a few have not been in communication with me. The American Immigration Lawyers Association is working with all affected lawyers to get their phones working and we expect this to be accomplished within the next few days. While they are scattered across many cities, they still will be able to represent you. In most cases, it is not necessary to use a local immigration lawyer. And where a local lawyer is needed, AILA members are working with Gulf Coast lawyers to appear on their behalf.
In the mean time, you can contact AILA at firstname.lastname@example.org and they should be able to get you in contact with your lawyer if you have not already had success.
Most affected lawyers, by the way, still have email working and still have web sites running. So consider using those means of communicating.
What will happen to correspondence from government agencies being sent to addresses in affected areas?
The USCIS New Orleans Office officials wish to make the best of scarce resources. Therefore, no appointment and printing certificates will be mailed out to those with addresses in the affected areas because of a low likely hood of someone at those addresses receiving a notice. The USCIS will not be scheduling interviews for persons residing in areas that, according to the postal service, are not yet
receiving mail delivery at their addresses (i.e. they have to go to the
post office to receive their mail), and those zip codes on the US Postal
Service website that indicate that they are only getting partial
service. All notices that are sent out are now sent at least 30 days in advance to account for forwarding of mail. Applicants should contact the 1800 number to provide new addressees (as required by law). Please visit www.uscis.gov for that information.
Can the USCIS New Orleans Office receive correspondence?
The USCIS New Orleans office cannot receive mail at the temporary site. All correspondence is to be sent to the Memphis office where the files are being housed.
Are pending cases being denied for failure to show for those affected by Hurricane Katrina?
The USCIS is not at this time denying any cases for failure to show, if they have been scheduled for an appointment after the storm. After the USCIS moves into the permanent office, notices will be sent to all persons who have failed to show to give them a window of opportunity to state their interest in pursuing their applications. However, if a notice comes back undeliverable as there is no forwarding order on file, they will be denied at that time.
About The Author
Gregory Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at email@example.com.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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