Executive Order Suspending Entry of Immigrants

A tweet from President Trump this past Monday evening proclaiming that immigration would be suspended provoked considerable trepidation and concern among many foreign nationals in the U.S. and their U.S. employers. Some of that concern was allayed on Tuesday evening, when the president stated during his daily press briefing that the suspension would be limited to those seeking U.S. permanent residence, not temporary visas. A reference to people flying in from abroad suggested that the suspension would not affect those already in the U.S. who had applied or planned to apply for adjustment of status to permanent resident. If that turned out to be the case, the practical effect of a suspension would be limited in that immigrant visas must be issued by the consular section of a U.S. Embassy or Consulate abroad, all of which are now closed but for emergency services due to COVID-19.

The Executive Order issued last evening, April 22, 2020, effective for 60 days beginning at 11:59 PM EDT April 23, 2020, was in line with the press briefing statement, and as it stands is likely to have little practical effect for most foreign nationals or their U.S. employers. The full text of the Executive Order can be found here.

Substance of the Executive Order 

The Executive Order does not apply to any foreign national who is already a U.S. lawful permanent resident (“green card holder”), or who seeks entry as a nonimmigrant (such as H-1B, L-1, TN, B-1/B-2, etc.). It applies only to those foreign nationals seeking to enter the U.S. as immigrants – that is to say, as lawful permanent residents or green card holders – who are both:

• Outside of the U.S. when the Executive Order goes into effect; and
• Do not have an immigrant visa in their passport issued by a U.S. Consulate that is valid on April 23, 2020, or do not have an official travel document such as a transportation letter, an appropriate boarding foil, or an advance parole document effective on April 23, 2020 or issued on any date thereafter that permits travel to the United States and seek entry or admission.

To reiterate, the practical effect of this restriction is limited because almost no new immigrant visas will be issued anyway in the coming weeks and possibly longer due to the suspension of most consular services at U.S. embassies and consulates abroad. There are also several exemptions to the above restriction.

Exemptions from the Executive Order 

In addition to the exemption of current U.S. lawful permanent residents, others exempt from the suspension of entry provision in the Executive Order are:

• any alien seeking to enter the United States on an immigrant visa as a physician, nurse, or other healthcare professional; 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, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees; and any spouse and unmarried children under 21 years old of any such alien who are accompanying or following to join the alien;
• any alien applying for a visa to enter the United States pursuant to the EB-5 Immigrant Investor Program;
• any alien who is the spouse of a United States citizen;
• any alien who is under 21 years old and is the child of a United States citizen, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;
• any alien whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee;
• any member of the United States Armed Forces and any spouse and children of a member of the United States Armed Forces;
• any alien seeking to enter the United States pursuant to a Special Immigrant Visa in the SI or SQ classification, subject to such conditions as the Secretary of State may impose, and any spouse and children of any such individual; or
• any alien whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

Ominous Signals? 

While the substance of the Executive Order was rather tame, particularly given the effective shutdown at the moment of consular services abroad, there were two potentially ominous signals of what might lie ahead.

The first is the termination provision, which holds out the possibility that the Executive Order may be continued beyond 60 days. The second is the Additional Measures provision:

Sec. 6. Additional Measures. Within 30 days of the effective date of this proclamation, the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State, shall review nonimmigrant programs and shall recommend to me other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.

We can only speculate as to what any such additional measures affecting nonimmigrant programs (such as H-1B, L-1, TN, E-1/E-2/E-3, and others) might be. Perhaps there will be none. Perhaps there will a restriction on the issuance of visas to FY2021 H-1B cap beneficiaries who choose to (or must) consular process their H-1B visas abroad rather than change status to H-1B in the U.S. Perhaps consulates will be restricted from issuing new or even renewal Blanket L-1 visas. Although labor certification (“PERM”) applications are a step in the permanent residence process as opposed to a nonimmigrant program, given the sharp increase in the U.S. unemployment rate might we see the Department of Labor vastly increase the number of PERM applications subject to supervised recruitment?

Only time will tell, and we will provide further updates as warranted. In the meantime, if you have particular questions or concerns, please contact Jeff Zimskind or the Stevens & Lee attorney with whom you regularly work.

This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.