President Donald Trump released a “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following COVID-19 Outbreak” on Wednesday, April 22, 2020. This proclamation provides the legal context and direction to implement a Monday night tweet asserting his intention to “suspend immigration.” While we analyze the legal implications of this proclamation below, it is also important to understand the context. As a practical matter, the limitation on the issuance of immigrant visas has been the result of the COVID-19 closure of consulates around the world. There have not been interviews in the past six weeks, and it is not certain when they will resume. Thus, there has already been a halt in the issuance of immigrant visas. Therefore, the practical effect of this order is limited.
The terms of the proclamation bar the entry of immigrants coming to the United States for an initial period of 60 days beginning at 11:59 p.m. on April 23, 2020. It is important to understand the difference between an immigrant and a nonimmigrant. An immigrant is a foreign national with an immigrant visa, who intends to permanently live and remain in the United States. Immigrants are coming to the United States permanently, and must be distinguished from nonimmigrants, who are coming to the United States on a temporary basis. The proclamation only applies to immigrants who are currently outside of the United States and prohibits them from entering the United States only for the next 60 days, although the proclamation leaves open whether it may be extended or expanded. The proclamation applies to the following individuals:
- Immigrants outside the United States on April 23, 2020.
- Immigrants who do not have an immigrant visa that is valid on April 23, 2020. Thus, immigrants who have had an interview with a consular officer, and have been issued a visa before April 24, 2020, may still present that visa and immigrate to the United States.
- There are a number of other legal documents that an immigrant may have, including a transportation letter, an appropriate boarding foil or an advance parole document. These documents remain valid for travel to the United States, whether issued before or after April 23, 2020 and are valid when presented. The proclamation only apples to immigrants who do not have any one of these designated documents.
The proclamation provides some exceptions and therefore does not apply to the following individuals:
- Any lawful permanent resident of the United States. This means that a permanent resident previously granted immigrant status, but who is outside the United States on April 23, 2020, may return to their home in the United States.
- The exclusion does not apply to any physician, nurse or other healthcare professional seeking to enter the United States on an immigrant visa to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak. This exception also applies to the spouse and unmarried children under 21 years old of any such immigrant.
- Any immigrant applying for a visa to enter the United States pursuant to the EB-5 Immigrant Investor Program.
- Any immigrant who is the spouse of a United States citizen.
- Any immigrant who is under 21 years old and is the adopted child of a United States citizen, or who is a prospective adoptee seeking to enter the United States to complete the adoption by a United States citizen.
- Any immigrant whose entry would further the important United States law enforcement objectives.
- Any member of the United States Armed Forces and any spouse and children of a member of the United States Armed Forces.
- Any immigrant seeking to enter the United States pursuant to a Special Immigrant Visa based upon programs for Iraqi or Afghan citizens who assisted the United States armed forces, and their spouse and children.
- Any immigrant whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security or their respective designees.
The president has ordered that the Secretary of Homeland Security, in consultation with the Secretary of State and the Secretary of Labor, to recommend whether to continue or modify the proclamation by June 12, 2020.
This proclamation only addresses immigrants outside the United States. However, the proclamation also hints at future actions that would impact nonimmigrants. Within 30 days, the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State, shall review nonimmigrant programs and shall recommend other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring and employment of United States workers.
This proclamation does not impact applications for green card applications filed in the United States. Those applicants who are currently in the United States and file an application to adjust status to permanent resident (Form I-485) are not impacted by this proclamation. Applicants can continue to submit applications, and the applications will continue to be adjudicated.