Suspension of Entry of Immigrants Due to Economic Effects of Coronavirus (COVID-19)

 

Introduction

On April 22, 2020, President Donald Trump signed a Presidential Proclamation titled “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak” [PDF version]. In the Proclamation, President Trump suspended the entry of certain classes of aliens as immigrants into the United States for a period of 60 days. The instant Proclamation does not restrict the entry of any nonimmigrants. In this article, we will examine the scope of the President's April 22, 2020, Proclamation.

(June 22, 2020 Update: The suspension was extended through December 31, 2020)

Scope of the Proclamation and Exemptions

President Trump's Proclamation applies to aliens seeking to enter the United States as immigrants only. It does not apply to aliens seeking to enter the United States as nonimmigrants. (June 23, 2020 Update: In extending the instant proclamation, President Trump also restricted entry for certain nonimmigrant workers. Please see our full article to learn more [see article].) There are separate Proclamations restricting the entry of certain aliens as immigrants and nonimmigrants from China [see article], much of Europe [see article], and several other countries [see article]. Unlike President Trump's prior Proclamations limiting entry, the April 22, 2020 Proclamation is not based on nationality.

The Proclamation restricts the entry of aliens as immigrants into the United States for a period of 60 days beginning at 11:59 PM on April 23, 2020 (this is the “effective date”). An alien is only affected if he or she is (i) outside the United States as of the effective date of the Proclamation, and (ii) does not have an immigrant visa that is valid as of the effective date, and (iii) does not have a travel document other than a visa that is valid on the effective date of the Proclamation. Thus, the Proclamation does not, for example, affect an alien who is seeking to adjust his or her status within the United States. It applies only to aliens seeking entry as immigrants from outside the United States.

The Proclamation applies to aliens seeking to enter the United States in any immigrant category that is not specifically exempted from the Proclamation. Thus, in order to understand who is affected by the Proclamation, we must examine who is exempt.

The following classes of aliens seeking entry into the United States as immigrants are not covered by the Proclamation:

Any alien who is already a lawful permanent resident;
Any alien seeking to enter the United States on an immigrant visa as a physician, nurse, or other healthcare professional, and any spouse and unmarried child under 21 years old who are accompanying or following to join the alien;
Any alien who is seeking to enter the United States 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 or the Secretary of Homeland Security, and any spouse and unmarried child under 21 years old who are accompanying or following to join the alien;
Any alien who is applying to enter the United States under the EB5 Immigrant Investor Program;
Any alien who is the spouse of a United States citizen;
Any alien who is the child of a United States citizen and under the age of 21, or who is a prospective adoptee seeking to enter the United States under the IR-4 or IH-4 classifications;
Any alien whose entry would further important United States law enforcement objectives, based on the determination of the Secretary of State or the Secretary of Homeland Security on a recommendation of the Attorney General;
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 with a Special Immigrant Visa in the SI or SQ classification, subject to conditions imposed by the Secretary of State, and any spouse or children of the SI or SQ immigrant; or
Any alien whose entry would be in the national interest of the United States, as determined by the Secretary of State or the Secretary of Homeland Security.

The first exception to note is that aliens who are already lawful permanent residents of the United States as of the effective date of the Proclamation are not subject to the Proclamation. The Proclamation applies to aliens seeking to enter as new lawful permanent residents.

Regarding family-based exemptions, it is important to note that in general cases, spouses and children of U.S. citizens are exempt, but spouses and children of lawful permanent residents are generally not. Certain prospective adoptees of U.S. citizens are exempt. The family exemption is broader only when the spouse or child is of a member of the U.S. Armed Forces, in which case it is not limited to U.S. citizen service members only. As we note below, the restrictions do not apply at all to alien seeking entry under the EB-5 program. We note several more family-exceptions for permanent residents below.

The entry restrictions cover all aliens seeking to enter in the employment-based categories with a couple of limited exemptions. First, EB5 immigrant investors are not affected by these entry restrictions, and may enter the United States on new EB5 visas if they are otherwise eligible to do so. Second, aliens seeking to enter as immigrants to work as doctors and nurses in the United States are not subject to the entry restrictions. Finally, if the Government determines that an alien is seeking to enter to do work combatting the coronavirus outbreak, the alien is exempt from the entry restrictions. Please note that in these cases, derivative spouses and unmarried children of the principal may accompany or follow to join.

Finally, there are several exemptions that will likely be less common — namely the law enforcement exemption, the exemption for those seeking entry on SI/SQ visas, and the general national interest exemption.

Please see our separate post regarding emergency visa services abroad for medical professional seeking to enter the United States [see blog].

Implementation of the Proclamation

The Proclamation will primarily affect the award of immigrant visas abroad. Except in cases where a prospective immigrant is exempt from the Proclamation, the U.S. Department of State will not grant new immigrant visas to aliens who are subject to the Proclamation while it remains in effect. In cases where an alien attempts to enter the United States on an immigrant visa, the Department of Homeland Security will assess the alien's eligibility at a port of entry.

The President provides in his Proclamation that any alien who attempts to circumvent the Proclamation through fraud, willful misrepresentation of a material fact, or illegal entry will be prioritized for removal.

Length and Purpose of the Proclamation

The Proclamation is slated to stay in effect for 60 days. The President may extend the Proclamation, with or without modifications, if he deems it to be in the national interest.

The President's explanation for his national interest determination is based primarily on economic concerns stemming from the severe job losses that have occurred as a result of the ongoing novel coronavirus outbreak. For example, the President stated that “[t]here is no way to protect already disadvantaged and unemployed Americans from the threat of competition for scarce jobs from new lawful permanent residents than by directing those new residents to particular economic sectors with a demonstrated need not met by existing labor supply.” Despite the fact that the President did also note that “introducing additional permanent residents when our healthcare resources are limited puts strain on the finite limits of our healthcare system at a time when we need to prioritize Americans and the existing immigrant population,” it appears that the crafting of the order and future restrictions will turn primarily on economic considerations.

At this time, it is impossible to know whether the President will find that extending the instant Proclamation beyond 60 days, with or without modifications, is in the national interest. The President may ultimately determine that further restrictions are unnecessary, or he may later extend restrictions to nonimmigrant categories as well. Based on the rationale for the instant Proclamation, it appears that the President's future decisions will be based on the extent of the U.S. economy's recovery, or lack thereof, and how that recovery affects U.S. citizens and aliens who are already admitted for lawful permanent residence.

Conclusion

The effect of the Proclamation in the immediate future may be limited due to the Department of State's having already severely scaled back most visa services due to the ongoing coronavirus outbreak. Its effects may become more acute as the United States gradually reopens and the Department of State begins to otherwise resume normal services. Those who are affected or who are unsure how the Proclamation affects them should consult with an experienced immigration attorney.

We will update the site with additional information as it becomes available.