Member Article

After stating he planned on issuing an Executive Order earlier this week, President Trump yesterday issued a proclamation barring intending immigrants from the United States for 60 days beginning at 11:50 p.m. on April 23, 2020. It states it is intended to help U.S. workers facing high levels of unemployment due to the Coronavirus.

The proclamation covers those who are:

• Outside the United States on the date/time it becomes effective;
• Do not have a valid immigrant visa on the date/time it becomes effective; and
• Do not have a valid official travel document (specific examples in the proclamation are a transportation letter, boarding foil, or advance parole document) on the date/time it becomes effective, or issued on any date thereafter that permits travel to the United States to seek entry or admission.
  
  

It is unclear what this proclamation will do to slow the influx of new green card holders since most immigrants receive their green cards following interviews at U.S. consulates abroad or at USCIS offices in the United States. U.S. consulates are closed for routine immigrant and nonimmigrant visa processing and USCIS offices are closed to the public so green card-related interviews are not now taking place.

The following categories are exempted from the proclamation:

1. Lawful permanent residents (LPR)
2. Those seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional to perform work essential to combatting, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak and their spouses or children who accompany them;
3. Individuals applying for a visa to enter the U.S. as an EB-5 Immigrant Investor;
4. Spouses of U.S. citizens;
5. Children of U.S. citizens under the age of 21 and prospective adoptees seeking to enter on an IR-4 or IH-4 visas;
6. Those “who would further important U.S. law enforcement objectives” (to be determined by the Secretaries of DHS and State based on the recommendation of the Attorney General his designees)
7. Members of the U.S. Armed Forces and their spouses and children
8. Individuals and their spouses or children eligible for Special Immigrant Visas as an Afghan or Iraqi translator/interpreter or U.S. Government Employee (SI or SQ classification)
9. Individuals “whose entry would be in the national interest” (as determined by the Secretaries of State and DHS, or their respective designees).
   
   

Non-immigrant visa holders are not covered by the proclamation. However, it requires that within 30 days of the effective date, the Secretaries of Labor and DHS, in consultation with the Secretary of State, shall review nonimmigrant programs and recommend to the President other appropriate measures to stimulate the U.S. economy and ensure “the prioritization, hiring and employment” of U.S. workers.

While not specifically stated, it appears nonimmigrant visa holders are not covered due to the fact their visas, when they allow the person to work in the U.S., are employer specific. According to the proclamation, while they are limited to working for the company that petitioned for them, permanent residents “once admitted, are granted ‘open market’ employment authorization documents, allowing them immediate eligibility to compete for almost any job, in any sector of the economy.”

The proclamation expires 60 days after its effective date and may be continued as necessary. Within 50 days, the Secretary of Homeland Security, in consultation with the Secretaries of State and Labor, is required to recommend whether President Trump should amend or extend it.

While the focus of this proclamation is one the admission of new permanent residents, it also contained language with implicit criticism of the labor certification process which will be the subject of a separate client alert.

Dykema will continue to keep you updated on this developing issue.

For more information about these and other immigration issues, please contact the author of this alert, James G. Aldrich, Jr., at [email protected]or 248-203-0583.

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