This content was published prior to the combination of Dentons Davis Brown. Learn more about Dentons Davis Brown.
You may have heard that the President tweeted earlier this week that he would soon issue an Executive Order to temporarily suspend immigration. The threatened Executive Order “suspending immigration” was issued as a Presidential Proclamation and becomes effective on 11:59 p.m. Eastern time on April 23, 2020. It does not suspend all immigration as tweeted.
Q: What immigration is suspended?
Entry to the U.S. as an “immigrant” – meaning for permanent residence – is suspended. This means people outside the U.S. who are applying for an immigrant visa at a U.S. consulate may not obtain that visa to enter for 60 days unless they are qualified for an exception.
Many exceptions apply:
- People who have an immigrant visa valid on April 23, 2020, at 11:59 p.m. (the “effective date”)
- People who have a valid entry document (advance parole, boarding foil, transportation letter) valid on the effective date or issued on any date thereafter
- Lawful permanent residents (i.e., “green card” holders)
- Healthcare professionals (and their spouses and unmarried children under 21) determined by the U.S. consulate to meet a definition in the Order. The definition is a bit muddled but is aimed at addressing COVID-19.
- People utilizing the EB-5 investor program
- Spouses of U.S. citizens
- Children of U.S. citizens who are under 21, including prospective adoptees under IR-4 or IH-4 visa classifications
- People who would “further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee”
- Members of the U.S. Armed Forces and their spouses and children
- Iraqi and Afghan translators/interpreters and Iraqi and Afghans who were forced to work for the U.S. government entering on Special Immigrant visas (subject to conditions that may be imposed on entry)
- Any person whose entry “would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees”
- Persons seeking asylum, refugee status, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Q: Does the Proclamation prevent “adjustment of status” for persons in the U.S. now?
Q: Are temporary (“non-immigrant”) visas affected?
No, however that could change. The Order states: “Within 30 days of the effective date of this proclamation, the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State, shall review nonimmigrant programs and shall recommend to me other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”
Q: Are PERM or other immigration applications affected?
No. However, see the language above regarding possible follow-on measures.
Q: How long will entry be suspended?
Sixty (60) days initially. It may be extended.
The Proclamation has limited – although still detrimental – effects on people who were planning to immigrate to the U.S. and their family members and employers. At this time, the U.S. consulates are closed to most applicants anyway.
The Proclamation may be the first step toward other immigration restrictions that are no doubt being pushed by some in the Administration. However, the powers of the Administration to restrict immigration further is limited in many ways, including immigration law and regulations.
Because the Proclamation is based on the economic impact of COVID-19 (rather than the health-related impact), it signals that the Administration is viewing immigration as a “zero-sum game” in which foreign workers “take” U.S. worker jobs.
This view disregards the job-creation effect, both direct and indirect, that immigration provides to our economy. To help prevent more damaging restrictions from being imposed, communicating the truth about how immigration is beneficially entwined in our workforce and entrepreneurial environment is essential.
It is important that businesses that rely on foreign workers contact the White House and members of Congress to express their views. Our government relations team can assist you in this effort.