President Trump Signs Executive Order Limiting Most Inbound Immigration; Order Does Not Limit Temporary Classifications or Immigration Inside U.S.

On April 22 2020, President Trump signed an 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.” The Order, which temporarily suspends some types of immigration into the United States, became effective on April 23, 2020, at 11:59 p.m. and will initially last for 60 days.

Who Is affected by the Executive Order?

The executive order suspends the entry of any individual outside the United States seeking to enter the United States as an immigrant and who meets the following criteria:

  1. Is outside the U.S. on April 23, 2020;
  2. Does not have an immigrant (resident) visa that is valid on April 23, 2020; and
  3. Does not have an official travel document other than a visa on the effective date (such as a transportation letter, an appropriate boarding foil, or an advance parole document/travel authorization).

This order prohibits any individuals who are outside the United States from obtaining immigrant (resident) visas who fall under the following classes:

  1. Spouses of U.S. Lawful Permanent Residents
  2. Children of U.S. Lawful Permanent Residents
  3. Adult sons and daughters of U.S. Lawful Permanent Residents
  4. Adult sons and daughters of U.S. Citizens
  5. Siblings of U.S. Citizens
  6. All employment-based applicants, except for certain medical professionals and EB-5 investors [This means that other professionals, professors, researchers, individuals of exceptional ability and skilled workers are prohibited from immigrating during the validity of this executive order.]
  7. Diversity Lottery recipients

Are there any exceptions to the Executive Order?

The following classes of individuals are exempted from the executive order:

  1. Those who have applied or will apply for adjustment of status in the U.S.
  2. U.S. Lawful Permanent Residents
  3. Spouses of U.S. Citizens
  4. Children of U.S. Citizens under age 21
  5. Prospective foreign adoptees of U.S. citizens (IR-4 or IH-4 visa classifications)
  6. Medical professionals, including physicians, nurses, or other healthcare professionals coming to perform work essential to combatting, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak, as determined by the Secretary of State and the Secretary of Homeland Security (They may bring their spouses and unmarried children under 21.)
  7. Members of the U.S. Armed Forces and their spouses and children
  8. Foreign nationals whose entry furthers U.S. law enforcement objectives, as determined by federal agencies
  9. Asylum seekers and refugees
  10. Foreign nationals seeking withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  11. Afghan and Iraqi nationals who were translators/interpreters or employed by the U.S. government and their spouses or children seeking entry pursuant to a Special Immigrant Visa
  12. Applicants of the EB-5 Immigrant Investor Program, which allows substantial investments in U.S. projects that create jobs (the million-dollar green card program)
  13. Non-immigrant visa holders that are granted on a temporary basis and do not confer permanent residence or the promise of citizenship (That includes students, temporary workers such as H-1B specialty workers, and H-2A agriculture workers.)
  14. Foreign nationals whose presence in the U.S. is in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security

How will the Executive Order be implemented?

The executive orderwill be implemented in the following two main ways:  

  1. U.S. Embassies and Consulates abroad will no longer issue immigrant visas to those who do not qualify for one of the above-mentioned exceptions.  
  2. U.S. Customs and Border Protection (USCBP) officials at U.S. port of entry will no longer grant entry into the U.S. to those who do not meet the above-mentioned exceptions.  

According to the executive order, foreign nationals who circumvent these restrictions will be found removable for willful misrepresentation and fraud and will be a priority for removal.

Does the Executive Order affect pending immigration and nonimmigrant petitions?

U.S. Permanent Residence processes, changes and extensions of nonimmigrant status inside the United States are unaffected. These are still being accepted and decided.   Specifically, the executive order does NOT affect the processing of:

  1. Labor certifications through the U.S. Department of Labor (DOL)
  2. Immigration petitions for foreign nationals in the United States or abroad, such as Form I-130, Petition for Alien Relative and/or Form I-140, Petition for Alien Worker with the U.S. Citizenship and Immigration Services (USCIS)
  3. Other immigration petitions such as I-360, Violence Against Women Act (VAWA) Self-Petitions; I-918 Petitions for U Nonimmigrant Status with USCIS
  4. All temporary work permit applications such as I-765, Applications for Employment Authorization with USCIS
  5. Permanent Residence cases (green cards) inside the United States for any foreign national in the U.S., who is eligible to apply for adjustment of status through Form I-485 Application to Register Permanent Residence or Adjust Status with the U.S. Citizenship and Immigration Services (USCIS)
  6. All citizenship and naturalization cases such as N-400, Applications for Naturalization and N-600, Applications for Certificate of Citizenship
  7. Nonimmigrant petitions and extensions including I-129, Petitions for Nonimmigrant Workers, who are outside the U.S. and seeking to enter nonimmigrant classifications, including H, L, B, E, F, J, TN, O, P, or R classifications

Does President Trump have the authority to do this?

The main statute cited in the order is Section 1182(f) of the U.S. Code [Section 212(f) of Immigration and Nationality Act], which gives the president broad authority to block the "entry" of categories of people he deems "detrimental" to U.S. interests.

Could there be additional restrictions?

Yes, pursuant to section 6 of the executive order, the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State, shall, within 30 days of the effective date of the executive order [by May 22, 2020], review nonimmigrant programs and make additional recommendations to the president.

Does the Executive Order change other COVID-19-related immigration restrictions?

The Order does not change other COVID-19-related immigration restrictions and slowdowns, which currently include:

  1. Closure of U.S. embassies and consulates abroad—routine visa services have not been available worldwide as of March 20, 2020
  2. The travel restrictions for individuals who have been in the People’s Republic of China, Iran, European countries, United Kingdom and Ireland
  3. Closures of the northern and southern U.S. borders for non-essential travel until at least May 20, 2020
  4. USCIS office closures to the public, currently extended through May 3, 2020
  5. Continuance of non-detained immigration court hearings, currently in effect through May 15, 2020 (If you have a case in removal proceedings, please visit EOIR’s Twitter page @DOJ EOIR for the latest updates.)

More questions on immigration during COVID-19?

For questions during the COVID-19 pandemic, contact the immigration lawyers at Murphy Desmond S.C. at 608.270.5550 or infoimmigration@murphydesmond.com.

Posted April 27, 2020

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