On April 22, 2020, President Trump issued the “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.” The proclamation becomes effective Thursday, April 23, 2020, at 11:59pm (EST) and temporarily suspends the entry of foreign nationals seeking to enter the U.S. as permanent residents (immigrants). It does not, at this time, include any limitations on nonimmigrant visas (such as H-1B, L-1, TN and E visas for temporary employment in the U.S. or B-1/2 visas for temporary business/tourism).
The proclamation applies to individuals seeking permanent resident status who:
- Are outside of the U.S. on the effective date of the proclamation;
- Do not hold valid immigrant visas on the effective date; and
- Do not hold other valid travel documents (transportation letters, boarding foils or advance parole documents) that permit travel to the U.S.
The proclamation exempts many categories of individuals from the suspension.
What are the exceptions?
The proclamation does not apply to:
- Lawful permanent residents (also known as “green card” holders);
- Spouses of U.S. citizens;
- U.S. military personnel (and their spouses and children);
- Doctors, nurses and other healthcare professionals (and their spouses and children) seeking entry to the U.S. to perform work essential to the combat of, recovery from, or alleviation of the effects of the COVID-19 crisis;
- Children of U.S. citizens (under the age of 21);
- Certain prospective adoptees of U.S. citizens;
- Individuals applying for the EB-5 immigrant investor program;
- Individuals determined by the Secretary of State and Secretary of Homeland Security to be essential for furthering important U.S. law enforcement objectives;
- Asylum seekers or refugees;
- Individuals seeking withholding of removal or protection under the Convention Against Torture;
- Individuals applying for Special Immigrant Visas as Afghan or Iraqi translators/interpreters or U.S. Government Employees (and their spouses and children); or
- Other individuals whose entry would be in the national interest.
What does this mean?
The proclamation applies only to those who are currently outside of the U.S. If a foreign national is already in the U.S., they may still apply for permanent resident status under any acceptable classification.
If a foreign national is outside of the U.S. but holds an immigrant visa, a permanent resident card or an advance parole document, they may still travel and be admitted to the U.S.
Those most affected by the proclamation are those individuals who are in the process of applying for immigrant visas abroad. Spouses and children of lawful permanent residents are included in the suspension, as are most employment-based green card seekers.
What stays the same?
A number of immigration-related changes due to COVID-19 had been put into place prior to the proclamation:
- Routine visa services at all U.S. embassies and consular posts were suspended as of March 20, 2020. Certain urgent and emergency services continue, as does processing for certain farm workers and medical professionals.
- Through at least May 3, 2020, U.S. Citizenship and Immigration Services (USCIS) has suspended in-person services, including interviews and biometrics processing.
- Until at least May 20, 2020, U.S. border crossings with Canada and Mexico are closed for non-essential travel.
- With limited exceptions, anyone who visited China, Iran, the Schengen Area, the U.K. or Ireland, in the two-week period prior to seeking entry into the U.S. will not be allowed entry.
- USCIS suspended premium processing of Forms I-129 and I-140, limiting the ability of employers to fast-track most nonimmigrant and immigrant visa petitions. Premium processing requires an additional fee paid to USCIS in exchange for adjudication of petitions within an approximate two-week period.
USCIS otherwise continues to accept and process applications and petitions, including H-1B cap filings, employment authorization and advance parole applications, and applications requesting an extension or change of status.
How long will this last?
The proclamation is initially valid for a period of 60 days but may be renewed.
What about nonimmigrants?
While nonimmigrant visas (including H-1B, L-1, TN, B, O and E visas and all other time-limited visas) are not included in the suspension, the proclamation requires that, within 30 days, the Secretaries of Labor, Homeland Security and State review nonimmigrant programs and make recommendations to the President regarding “other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.” This could result in significant changes to current nonimmigrant visa programs in the near future.
What can employers do?
Employers can help provide peace of mind to foreign national employees by confirming that the proclamation does not apply to individuals currently in the U.S. and does not limit their ability to extend or change status in the U.S. While international travel is not necessarily recommended, those with valid visa stamps or permanent resident cards are not affected by the proclamation.
Further, in an attempt to limit further, more sweeping bars to immigration, employers can take action to ensure that their governmental representatives understand the importance of immigrant workers and their contributions to our communities and our nation.
Please contact Nici Kersey or your Bose McKinney & Evans labor and employment attorney
to help understand of the proclamation may impact your organization.