Impact of Executive Order Suspending Immigration
Following President Trump’s tweet on April 20, 2020 indicating he would temporarily suspend immigration into the United States, the White House revealed the actual Executive Order. The order, “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak”, only applies to individuals who are currently abroad and will be applying for immigrant visas to come to the U.S. as permanent residents.
Section 1 of the order states that “[t]he entry into the United States of aliens as immigrants is hereby suspended”, specifically limiting this restriction to foreign nationals seeking to enter the United States as “immigrants”. Therefore, nonimmigrants such as foreign nationals in F-1 student status, H-1B or L-1 temporary worker status, or B-1 business visitors or B-2 tourists are not affected by this order.
Section 2 of the order further limits the scope of the order by specifically limiting its provisions to foreign nationals who are outside the U.S. Therefore, applicants with pending applications for adjustment of status in the U.S. are not affected (even those adjustment applicants who are currently abroad with valid travel documents). Section 2 also limits the suspension on entry to foreign nationals who do not already have a valid immigrant visa but have not yet traveled to the U.S. or another official travel document.
Thus, after just the first two sections, the “suspension of entry of immigrants” is limited to only those foreign nationals who have applied or are applying for immigrant visas and have not had them issued. To clarify, the practical impact of this order is to suspend the issuance of immigrant visas (since individuals who already have their immigrant visas can still enter the U.S.), which is confirmed in Section 3 of the order discussing implementation and enforcement and discussed in detail below. Section 2 continues by describing the exceptions to the order and includes lawful permanent residents (green card holders), health care professionals, EB-5 Immigrant Investors, spouses and minor children of U.S. citizens, military servicemembers and their families, and other special cases. Of note, Section 2 also indicates that the order does not apply to foreign nationals “whose entry would be in the national interest.” It is unclear whether this choice of language is intended to exempt all immigrant visa applicants who have received national interest waivers or if a special determination from the Secretary of State or Department of Homeland Security is required.
As written and accounting for the exceptions, the scope of the restriction now appears to be limited to the following categories of immigrant visa applicants:
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Employment-based immigrant visa applicants (except for applicants whose entry has been determined to be in the national interest);
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Family-sponsored immigrant visa preference categories, including spouses and children of permanent residents;
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Parents of U.S. citizens;
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Diversity visa applicants.
Section 3 of the order, Implementation and Enforcement, provides for the consular officer to determine if the visa applicant is eligible for an exception which implies that such determination will be made at the visa interview at the consulate or embassy. It is unclear what the process will be if the officer determines the applicant is not eligible for an exception and whether the application will be denied or held in abeyance pending the expiration or withdrawal of the executive order. Section 3 also tasks the Secretary of Homeland Security (presumably through Customs and Border Protection) to enforce the order as it pertains to entries into the U.S.
As a practical matter, this order will not have much tangible impact at least in the immediate term; the U.S. consulates and embassies have suspended routine visa operations and the travel restrictions are imposed worldwide in an attempt to limit the spread of COVID-19. However, for those affected individuals who have been waiting perhaps many years for their immigrant visas, the 60-day suspension is yet another disappointing and frustrating delay. Additionally, as the president indicates in the order itself, additional measures may be imposed in the future affecting a broader array of applicants, and this particular order may also be extended if he deems it necessary.
If you have specific questions, please contact a Troutman Sanders immigration attorney to discuss your particular situation. Please visit the Pepper Hamilton/Troutman Sanders COVID-19 Resource Center for COVID-19-related news and developments.