April 23, 2020 |
On April 22, 2020, the White House issued a Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak, which bars certain foreign nationals from entering the United States as immigrants unless they have alternative travel documents. The proclamation has an effective date of April 23, 2020 (11:59 p.m.).
The suspension and limitation on individuals seeking entry as immigrants, pursuant to section 1 of the proclamation, will apply only to foreign nationals who:
• are outside the United States on the effective date of this proclamation;
• do not have an immigrant visa that is valid on the effective date of this proclamation; and
• do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits them to travel to the United States and seek entry or admission.
The new proclamation contains several exemptions. The suspension will not apply to the following individuals:
• any lawful permanent resident of the United States;
• any individual seeking to enter the United States on an immigrant visa (a) as a physician, nurse, or other healthcare professional; (b) to perform medical research or other research intended to combat the spread of COVID-19; or (c) 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 (d) any spouse and unmarried children under age 21 accompanying or following an individual entering the country for one of the above reasons;
• any individual applying for a visa to enter the United States pursuant to the EB-5 Immigrant Investor Program;
• any individual who is the spouse of a U.S. citizen;
• any individual who is under age 21 and is the child of a U.S. citizen, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;
• any individual whose entry would further important U.S. 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 U.S. Armed Forces and any spouse and children of a member of the U.S. Armed Forces;
• any individual 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 individual whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.
The proclamation also explains that a consular officer at the time of interview for an immigrant-based visa “shall determine, in his or her discretion, whether an immigrant has established his or her eligibility for an exception in section 2(b) of this proclamation.” Section 2(b) explains possible exemption eligibility. The proclamation “shall expire 60 days from its effective date,” at which point it may be extended.
How Does This Impact Employment?
Employers should be aware that this proclamation does not halt immigration or close the U.S. borders to all prospective immigrants. Furthermore, employees currently in the U.S. seeking to change their immigration status or apply for immigrant petitions will not be adversely affected. Similarly, nonimmigrant visa holders (H-1B, L, TN, E, O, among others) are unaffected and may travel outside the United States subject to normal restrictions. This entry restriction applies to individuals who must apply for immigrant visas outside the United States and subsequently travel to the United States and do not have an alternative travel document (such as Advance Parole) that permits them to travel to the United States and seek entry or admission.
For these prospective workers, there are still several exceptions that may be applicable for continued immigrant processing abroad, most notably, for workers seeking to enter for work as healthcare professionals; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combatting and alleviating the effects of the COVID-19 outbreak.
In sum, we expect that the new proclamation will not present major additional hurdles for immigrant processing given the current COVID-19-related restrictions in play. Routine visa services at all U.S. embassies and consular posts have already been suspended as of March 20, 2020 and remain suspended until further notice (which will, regardless of the ban, prevent immigrant processing abroad for the foreseeable future). U.S. embassies and consulates continue to provide urgent and emergency visa services as available, including visa processing for medical professionals (one of the categories exempted by the entry ban). Domestically, the United States Citizenship and Immigration Services (USCIS) has suspended in-person interviews and biometrics appointments through at least May 3, 2020 but continues to process applications and petitions, including those requesting extensions and change of status.
The U.S. borders remain generally open, with some caveats. The U.S. land borders with Canada and Mexico remain closed for non-essential travel through at least May 20, 2020. Per prior presidential proclamations, the entry of most foreign nationals (regardless of nationality) who were physically present in China, Iran, the European Schengen Area, the United Kingdom, and Ireland during the 14-day period before attempted entry into the United States has also been suspended. These suspensions will continue to be in effect until otherwise terminated.1
Compliments of Littler Mendelson – a member of the EACCNY.