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Summary of Trump’s Executive Order to Suspend Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the Coronavirus (COVID-19) Pandemic: Mostly Smoke and Mirrors

April 23, 2020
Beata Leja

On April 20, 2020, President Trump announced via Twitter his intention to “suspend all immigration” into the U.S., causing panic amongst immigrants, their families and their employers. The actual executive order titled Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak was issued on April 22, 2020 is not nearly as expansive as initially announced via Twitter, and appears to be a ploy to rally the President’s base in light of the growing criticism about his administration’s response to the Coronavirus (COVID-19) pandemic.

What Does the Order Say?

The executive order becomes effective on Thursday, April 23, 2020 and is valid for 60 days until Sunday, June 21, 2020. The order prohibits the entry into the U.S. of any individual who is coming the U.S. as an “immigrant” and who is:

  •  – Outside of the U.S. on the date of the order (April 22, 2020);
  •  – Does not already have a valid immigrant visa as of the date of the order (April 22, 2020); AND
  •  – Does not have a valid official travel document (e.g. transportation letter, boarding foil, or advance parole) as of the date of the order (April 22, 2020) or issued on any date thereafter that permits travel to the United States to seek entry or admission.

An “immigrant” is a person coming to the U.S. on an immigrant visa for the purpose of becoming a lawful permanent resident (LPR or “green card” holder).

Who is Exempted and NOT Impacted by the Order?

The following categories of persons are explicitly exempt from the executive order and whose entry to the U.S. will not be impacted by the order:

  1. 1. Lawful permanent resident, meaning those who are already “green card” holders;
  2. 2. Physicians, nurses, or other healthcare professionals (and their spouse and child(ren)) coming to perform essential work to combat COVID-19;
  3. 3. EB-5 immigrant investors;
  4. 4. Spouses of U.S. citizens;
  5. 5. Children of U.S. citizens, which includes biological children, stepchildren, and adopted children;
  6. 6. Individuals coming to further U.S. law enforcement objectives;
  7. 7. Members of U.S. Armed Forces (and their spouse and child(ren));
  8. 8. Individuals eligible for the Special Immigrant Visa (SIJ) as an Afghan or Iraqi interpreter or U.S. Government Employee (SI or SQ);
  9. 9. Other individuals whose entry would be in the national interest (e.g. National Interest Waiver); and
  10. 10. Asylum seekers and refugees.

Furthermore, since the executive order only prohibits the entry into the U.S. of “immigrants” who are coming to the U.S. to become permanent residents (i.e. “green card” holders), by definition and default, the executive order also exempts nonimmigrants coming to the U.S. temporarily and whose entry to the U.S. will not be impacted by this order, such as the following:

  1. 11. Business visitors and tourists coming on B-1/B-2 visa, ESTA or Canadian passport;
  2. 12. E-1/E-2 investors and treaty traders;
  3. 13. E-3 Australian workers;
  4. 14. F-1 students;
  5. 15. H-1B workers;
  6. 16. H-1B1 Chilean and Singaporean workers;
  7. 17. J-1 exchange visitors;
  8. 18. K-1 fiancées;
  9. 19. L-1 intracompany transferee employees;
  10. 20. O-1 extraordinary ability workers;
  11. 21. P athletes and artists;
  12. 22. R-1 religious workers; and
  13. 23. TN Canadian and Mexican workers.

Finally, since the order explicitly prohibits the “entry of any individual seeking to enter the U.S.” as an immigrant, by default and definition, the order exempts the following categories of individuals already present in the U.S., who will not be impacted by the order, such as the following:

  1. 24. Individuals present in the U.S. who have filed applications to adjust status (I-485) with U.S. Citizenship and Immigration Services (USCIS);
  2. 25. Individuals present in the U.S. in any nonimmigrant status, including those for whom applications to extend their status or change their status is pending with USCIS;
  3. 26. Individuals present in the U.S. awaiting a decision on their asylum application filed with the USCIS asylum office or in immigration court;
  4. 27. Individuals present in the U.S. in removal (deportation) proceedings;
  5. 28. Any other immigrant physically present in the U.S.; and
  6. 29. Naturalized U.S. citizens.

Who Will be Most Impacted by This Order?

Despite the expansive list of exemptions, certain groups of prospective new immigrants who are outside of the U.S. and in the process of seeking lawful permanent residency in the U.S. may be negatively impacted by this order, especially if it gets extended beyond the initial 60 days, mostly notably:

  •  – Parents of U.S. citizens;
  •  – Adult children (single and married) of U.S. citizens;
  •  – Siblings of U.S. citizens;
  •  – Spouses and children of lawful permanent residents (“green card” holders);
  •  – Individuals sponsored for permanent residency by a U.S. employer; and
  •  – Diversity lottery winners.

While no doubt the executive order may have a negative impact on these immigrants, as their ability to secure an immigrant visa and entry to the U.S. may be delayed, the order appears to be mostly smoke and mirrors intended to fool the President’s base. The reason being that the U.S. Consulates suspended all routine visa services on March 20, 2020 in response to the COVID-19 pandemic, halting virtually all visa processing and interviews, with limited exceptions only for emergency matters and visas for health care professionals. At the time of the executive order issuance on April 22, 2020, the Department of State had not yet announced when it would reopen, meaning the executive order coincides with the closure of all U.S. Consulates, during which time no new immigrants are able to obtain an immigrant visa anyway. Furthermore, on account of the many travel restrictions in place right now as a result of COVID-19, few people are able to travel to the U.S. anyway, so this executive order will be significantly less impactful than initially announced via Twitter. It is probably no coincidence that the main groups of immigrants impacted by the order are those very same immigrants that Trump promised to stop from being able to immigrate to the U.S. through “chain migration,” making it clear that he is using this pandemic to fulfill a campaign promise months before an election.

Nevertheless, if the executive order is extended beyond June 21, 2020, it will certainly have a detrimental impact on these immigrants, their families and their employers. Additionally, once the U.S. Consulates do reopen, consular officers will be able to exercise discretion in determining who is and is not subject to the order, and it is not yet known whether the discretion will be interpreted broadly or narrowly, causing great uncertainty even for those who are exempt under the order.

If you have questions about the impact of the executive order on the immigrant visa processing for yourself, your family or your employee, please contact an attorney at Minsky, McCormick and Hallagan, P.C.

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