Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Pandemic
On the evening of April 22, 2020, President Trump issued his “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak” (the “Proclamation”). The Proclamation temporarily suspends, for 60 days, the ability of certain individuals to receive visas to immigrate to the United States. Among other reasons, President Trump stated that the suspension of certain immigrants from entering the United States is necessary to protect the U.S. labor market and medical resources following the COVID-19 outbreak in the United States.
When does the Proclamation go into effect, and how long does it last?
The Proclamation takes effect on Thursday, April 23, 2020, at 11:59 PM (Eastern Time) (the “effective date”), and it will last for 60 days (until June 22, 2020). However, the Proclamation states that it “may be continued as necessary,” meaning that it could be extended.
What does the Proclamation do?
The Proclamation suspends the entry of any individual to the United States as an immigrant who meets all of the following:
- is outside the United States on the “effective date” of the Proclamation (Thursday, April 23, 2020, at 11:59 PM (Eastern Time));
- does not have a valid immigrant visa on the effective date; and
- does not have a valid non-visa official travel document (for example, a transportation letter, boarding foil, or advance parole document) on the effective date, or issued anytime after the effective date that permits travel to the United States to seek entry or admission.
Why is it important that the Proclamation only suspends the entry of “immigrants” who are outside of the United States and who do not have a valid immigrant visa or travel document to the United States?
First, the Proclamation only applies to individuals who are outside the United States and are applying for immigrant visas at overseas U.S. embassies or consulates to come to the United States; this process is known as “consular processing.” The Proclamation does not apply to anyone who is applying for a Green Card inside the United States. This process is called “adjustment of status.”
Second, the Proclamation suspends entry to individuals seeking immigrant visas to enter the United States as immigrants. The Proclamation, as written now, does not apply to individuals seeking “nonimmigrant” visas to enter the United States to visit or work on a temporary basis. Some examples of common nonimmigrant visas or status include:
- Visitors under the Visa Waiver Program (VWP)
- Tourists (B-2) and Business Visitors (B-1)
- F-1 and M-1 Nonimmigrant Students
- J-1 Exchange Visitors
- H-1B Specialty Occupation Workers and TN NAFTA Professionals
- O-1 Aliens of Extraordinary Ability
- R-1 Temporary Nonimmigrant Religious Workers
- E-1 Treaty Traders/E-2 Treaty Investors
*However, the Proclamation states that within 30 days of the effective date, the Department of Homeland Security and the Department of Labor is required to review nonimmigrant programs and recommend measures to “stimulate the U.S. economy and ensure the prioritization, hiring, and employment of United States workers.” Accordingly, it is possible that nonimmigrant employment visa applicants may be affected in the future.
Third, the Proclamation applies to individuals who are outside the United States and do not have a valid immigrant visa or travel document. This means that someone who has already received a valid and unexpired immigrant visa or travel document before the Proclamation’s effective date should still be able to enter the United States as an immigrant (unless country- or region-specific entry bans are still in effect).
What immigrants are exempt from the Proclamation?
The Proclamation contains a list of specific individuals who are exempt from the suspension of entry as immigrants to the United States. This means they are still able to apply for immigrant visas to immigrate to the United States while the Proclamation is in effect. Exempt individuals include:
- Lawful permanent residents (U.S. “Green Card” holders);
- Individuals (and their spouses or children under age 21) who seek to enter the United States with immigrant visas in order to work as healthcare professionals to perform research or medical work essential to combatting, recovering from, or otherwise alleviating the effects of the COVID-19 pandemic;
- Individuals applying for a visa to enter the U.S. under the EB-5 immigrant investor visa program;
- Spouses of U.S. citizens;
- Children of U.S. citizens under the age of 21 and prospective adoptees seeking to enter on an IR-4 or IH-4 visa
- Individuals who would further important U.S. law enforcement objectives (for example, criminal witnesses or informants);
- Members of the U.S. Armed Forces, and their spouses and children;
- Individuals and their spouses or children eligible for Special Immigrant Visas as an Afghan or Iraqi translator/interpreter or U.S. Government Employee; and
- Individuals whose entry would be in the national interest (as determined by the U.S. State Department or Department of Homeland Security).
Does the Proclamation affect asylum applicants?
No. The Proclamation states that it does not limit the ability of individuals to apply for asylum, refugee status, withholding of removal, or relief under the Convention Against Torture.
So which immigrants are actually affected by the Proclamation?
The Proclamation’s most significant effect is that it will prevent several categories of family-based and employment-based immigrants from receiving visas to immigrate to the United States. This means that while the Proclamation is in effect, the following types of immigrants will not be eligible to seek immigrant visas unless they are covered under one of the exceptions noted earlier:
- Parents of U.S. citizens
- All “Family Preference Category” immigrants, including:
- Unmarried, adult sons and daughters (age 21 or over) of U.S. citizens
- Spouses and unmarried children (under age 21) of U.S. green cardholders
- Unmarried adult sons and daughters of U.S. green cardholders
- Married sons and daughters (of any age) of U.S. citizens
- Brothers and sisters of adult U.S. citizens
- Many “Employment-based Preference” immigrants, including:
- EB-1 “Persons of extraordinary ability” in the arts, science, education, business, or athletics; outstanding professors and researchers; and multinational managers and executives
- EB-2 Professionals with Advanced Degrees or Exceptional Ability
- EB-3 Skilled Workers, Professionals, and Unskilled Workers
- EB-4 Religious Workers, Special Immigrant Juveniles, and others (except as noted in the Proclamation’s exemptions)
- Diversity immigrants
What is the practical impact of the Proclamation right now?
The Proclamation does not have a major practical impact at the present. This is because routine immigrant visa issuance at U.S. embassies and consulates has been suspended since at least March 20, 2020, due to the COVID-19 pandemic. Thus, even without the Proclamation, individuals seeking immigrant visas overseas are still unable to attend their immigrant visa interviews until the U.S. embassies and consulates resume visa issuance services. Furthermore, U.S. entry bans applying to non-U.S. citizens, non-U.S. green card holders, and others are still in effect for foreign nationals traveling from China, Iran, the European Schengen Area, and the United Kingdom and Ireland.
Should I give up on sponsoring my family member for an immigrant visa or sponsoring an individual for an employment-based green card?
No. In our view, it is worthwhile to proceed without delay. The Proclamation’s stated duration is 60 days (although it is possible that the Proclamation will be extended). Furthermore, the Proclamation only applies to the last step of immigrating to the United States—receiving an immigrant visa overseas. The process of sponsoring an immigrant to come to the United States requires several initial steps that are not affected by the Proclamation as it is written. The Proclamation does not indicate that the petitioning process for sponsored immigrants (the I-130 petition process for family-based immigrants, or the PERM and/or I-140 petitioning process for employment-based immigrants) will be affected. After approval of the petition, prospective immigrants still must wait anywhere from several months to more than 10 years for their visa “priority date” to become current. Therefore, we would not advise wasting valuable time now. Lastly, there will certainly be federal court litigation challenging the Proclamation, and it possible that a federal judge may prevent the Trump Administration from enforcing the Proclamation on a temporary or even permanent basis.
Please check back as we continue to update our insight and analysis on the impact of the Proclamation.