On April 22nd, 2020, President Trump issued an executive order barring entry into the U.S. for 60 days for certain classes of immigrants outside of the country. This order came on the heels of the April 20th Presidential tweet:

The tweet had the effect of a cliffhanger and the order was anticipated to be a total ban on immigration, with heightened concern from foreign nationals, their employers, immigrants, affected government workers who would be putting such mechanisms into place, and interested parties alike. When it came, the order was titled: The Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak. It turned out to be much milder than expected.

The contents of the order did not really add anything new and were in line with the travel restrictions and delays in visa processing that were already in place, and therefore did not make any grand change to the status quo. After all, embassies and consulate posts have been closed since March 20th, with all routine visa services suspended and travel to the U.S. essentially halted to prevent the spread of COVID-19.

Who can’t come into the U.S. (as stated in the proclamation)

  • Individuals outside the U.S. who do not have a valid immigrant visa
  • Individuals who do not have valid travel documentation (other than a visa)

The proclamation focuses its suspension of entry on only one class of people: 

It is a ban on entry for individuals who are physically outside of the U.S. and do not have a valid immigrant visa (an immigrant visa is issued as the last step before receiving a green card and becoming a legal permanent resident), and as such the order affects those individuals who were waiting for their immigrant visas to be processed at the embassies and consulates abroad (this processing was already paused as part of the suspension of routine visa services as of March 20th) and who were intending to travel as soon as receiving their green cards within the next 60 days. A very limited pool of individuals indeed.

Who can come into the U.S. (those who are exempt from suspension):

  • Legal permanent residents (green card holders)
  • Nurses, physicians, healthcare professionals who are working on the efforts to combat COVID-19, who are currently on immigrant visas
  • EB-5 immigrant visa applicants (foreign nationals applying for an immigrant visa within the EB-5 investor category)
  • The spouse and children (under 21) of U.S. citizens (categories IR2, CR2, IR3, IH3, IR4, IH4)
  • Individuals who would further important U.S. law objectives – as determined by DOS and DHS – and based on a recommendation from the Attorney General’s office
  • Individuals whose entry is in the national interest – as determined by DOS and DHS
  • Special immigrants (SI or SQ classifications including Iraqi and Afghan translators and religious workers).

Most pointedly, the proclamation does not apply to or affect any work visa applications. Visa holders on L-1, E-1, E-2, E-3, F-1, H-1B, O-1, P-1, TN, etc. can continue living and working in the U.S.

Although visa applications from abroad are on pause, if these visa holders are in the U.S., they may continue to file for extensions, amendments, changes of employer and changes of status with USCIS. Nor does it affect the green card application process inside the U.S. Employers may still continue sponsoring employees for green cards, and individuals who qualify to self-petition, may still do so.

Future Concerns:

  1. Possible extension. The proclamation is in place for 60 days effective April 23, 2020. However, the text indicates the possibility of an extension. It states that within 50 days of the date of the proclamation, the Secretary of Homeland Security (in consultation with the Secretary of State and Secretary of Labor) shall recommend to the President whether to continue or modify the order. So, effectively the Trump administration has 50 days to decide whether to extend the suspension or not.
  2. Additional restrictions. The text of the order references planned further restrictions and states that within 30 days of the date of the proclamation, the Secretary of Labor and Security of Homeland Security in consultation with the Secretary of State shall review nonimmigrant visa programs (nonimmigrant visas are for people visiting or staying in the U.S. temporarily e.g. for employment, studying, tourism) and shall make recommendations on other appropriate measures to stimulate the U.S. economy and ensure the prioritization, hiring, and employment of U.S. workers.

Conclusion:

We hope this brings clarity as to what the executive order entails and how immigration will be affected. For questions of further guidance, please contact Managing Attorney Afsha Randera by email at arandera@sullivanattorneys.com.