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What We Know and Don't Know About the Latest Presidential Proclamation Affecting U.S. Immigration

April 29, 2020

At 11:59 p.m. (EDT) on April 23, the Presidential Proclamation entitled “Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During Economic Recovery Following the COVID-19 Outbreak (the ‘Proclamation’)” became effective for an initial period of 60 days.  The Proclamation may be extended beyond this initial 60-day period or otherwise modified upon the recommendation of the Secretary of Homeland Security (“DHS”) in consultation with the Secretary of State (“DOS”) and the Secretary of Labor (“DOL”).

What We Know About the Proclamation

The stated objectives of the Proclamation are to:

  • Ameliorate the impact of foreign workers on the U.S. labor market at a time of high domestic unemployment and depressed demand for labor
  • Conserve U.S. Department of State resources so consular officers, whose ranks have been reduced by COVID-19 related staffing disruptions, can focus on providing assistance to U.S. citizens and current U.S. permanent residents stranded abroad and in need of evacuation
  • Reduce the burden of excess labor supply affecting U.S. workers at the margin between employment and unemployment and who disproportionately fall in to historically disadvantaged groups, including minorities, workers without college degrees and the disabled
  • Address the ongoing failure of U.S. immigrant visa processes to require U.S. employers to account for the displacement of U.S. workers by foreign workers rather than directing foreign workers into sectors of the U.S. economy with a labor demand unmet by the U.S. labor supply
  • Limit the strain on the resources of U.S. healthcare systems by avoiding entry of additional new permanent residents and permitting U.S. healthcare systems to prioritize the healthcare needs of U.S. citizens and a rising U.S. permanent resident population.

The Proclamation seeks to achieve these objectives during the 60-day time period following April 23rd by suspending the entry of any foreign national seeking to enter the U.S. as an immigrant (also known as a Lawful Permanent Resident) who:

  • Is outside the U.S. on the Proclamation’s effective date on April 23rd
  • Does not have a valid  immigrant visa on the Proclamation’s effective date; and
  • Does not have a valid official travel document (such as a transportation letter, boarding foil, or advanced parole document) on April 23, 2020, or issued on any date thereafter that permits travel to the U.S. to seek entry or admission.

At present, the following categories of foreign nationals are exempt from the Proclamation’s temporary suspension of entry in immigrant status:

  • Lawful U.S. permanent residents (green card holders)
  • Spouses of U.S. citizens, children of U.S. citizens under 21 years of age, and prospective adoptees of U.S. citizens under certain visa classifications
  • Applicants for an immigrant visa under the EB-5 Immigrant Investor Program
  • Foreign nationals and their accompanying or following to join spouses and unmarried children under 21 years of age who seeking to enter the U.S. 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 DOS and DHS
  •  Foreign nationals whose entry would further important U.S. law enforcement objectives, as determined by DOS and DHS, based on a recommendation of the U.S. Attorney General
  • Foreign nationals and their spouses and children who are members of the U.S. Armed Forces
  • Afghan and Iraqi nationals and their spouses and children who were translators/interpreters or employed by the U.S. government seeking entry under a Special Immigrant Visa
  • Foreign nationals whose entry would be in the national interest as determined by the DOS and DHS
  • Foreign nationals seeking entry to the U.S. in asylum or refugee status or seeking the withholding of removal or protection under the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment.

The determination of whether the foreign national seeking immigrant status is in one of the exempt categories falls within the discretion of the consular officer adjudicating the immigrant visa application. 

The Proclamation does not revoke any currently valid U.S. visas, and it does not suspend the U.S. entry of foreign nationals with a valid travel document issued in conjunction with a pending Application to Adjust from nonimmigrant to immigrant status from within the U.S.  However, it does apply to all foreign nationals who during the Proclamation’s effective period seek to apply for U.S. resident status at a U.S. embassy or consulate abroad, regardless of whether the foreign national’s immigrant visa application is family-based or employment-based.  Therefore, the Proclamation affects the timeline and plans of U.S. citizens and U.S permanent residents awaiting the legal immigration of close family members from abroad and of U.S. employers awaiting the legal immigration of much needed highly skilled or professional foreign workers.  A request for a temporary injunction already has been filed in a pending lawsuit before the U.S. District Court in Oregon in an effort to protect the foreign national children of U.S. citizens and residents who will turn 21 years of age and therefore “age out” of the immigrant visa process because they will be unable under the Proclamation to obtain emergency immigrant visa adjudications at a U.S. embassy or consulate abroad.

Notably, the Proclamation’s suspension of entry does not currently extend to foreign nationals seeking entry to the U.S. in nonimmigrant status, such as K-l, J-l, H-lB, L-l and O-l status.  However, under the Proclamation, DOL and DHS, in consultation with DOS, are required within 30 days of April 23rd, to review nonimmigrant visa programs and make recommendations to President Trump about other appropriate measures to stimulate the U.S. economy and ensure “the prioritization, hiring and employment” of U.S. workers.

What We Don’t Know about the Proclamation

The Proclamation contains language which suggests that the immigrant visa or green card process and the process for obtaining U.S. work-authorized nonimmigrant visas, such as the H-lB visas for professionals, could be subject to future modifications aimed at making it more difficult, costly and risky for U.S. employers to hire foreign nationals on an indefinite or temporary basis.  Under the current green card process, many years often pass between the initial testing of the U.S. labor market for the availability of qualified U.S. workers to fill the job being offered to a foreign national and the ultimate issuance of the green card based on that job offer.  Therefore, further modifications of the immigrant visa process under the Proclamation could take the form of requiring U.S. employers to conduct additional recruitment at the end of the green card process to demonstrate the continued unavailability of U.S. workers to fulfill the job offered to a foreign national.  Similarly, the nonimmigrant visa process could be altered to require U.S. employers to conduct legitimate recruitment efforts to hire U.S. workers for an offered position prior to sponsoring a foreign national for the position under an H-lB visa.

What Can U.S. Employers Do to Minimize the Impact of the Proclamation?

While 30 days from April 23rd is a short time to prepare for potential modification of the nonimmigrant visa process portended by the Proclamation, U.S. employers temporarily employing foreign national workers under an H-lB visa or other U.S. work authorized nonimmigrant visa should take steps as early as possible to have those visas extended or renewed from within the U.S.  With the current suspension of nonimmigrant visa appointments at U.S. embassies and consulates due to the global COVID-19 outbreak, nonimmigrant visa holders should be cautious about leaving the U.S. with the expectation of obtaining a new nonimmigrant stamp at a U.S. embassy or consulate abroad before returning to the U.S.  Remaining in the U.S. and continuing to work based on a USCIS approval notice for the nonimmigrant visa extension may well be the most prudent course of action until the U.S. labor market improves and visa services at U.S. embassies and consulates are restored to regular levels.              

U.S. employers wishing to sponsor valued foreign workers for U.S. permanent resident status should start the green card process as soon as feasible and move forward with it as quickly as possible.  Foreign nationals should promptly file an Application to Adjust Status when an immigrant visa number becomes available to them.  In addition to retaining their nonimmigrant status while their application to adjust status is pending, they should also take the precaution of simultaneously applying for an employment authorization document and travel document for future use, if necessary. 

While unexpected hurdles in the form of greater restrictions on obtaining immigrant and nonimmigrant status may arise under future extensions and modifications of the April 23rd Proclamation, taking steps now to maximize a foreign national’s eligibility for such immigration benefits is the best protection against losing a foreign worker making a valuable contribution to the realization of a U.S. company’s business objectives.       

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