Overview
For additional guidance, please refer to Steptoe's COVID-19 Resource Center.
On April 22, President Trump signed a proclamation titled "Proclamation Suspending Entry of Immigrants Who Present a Risk to the US Labor Market During the Economic Recovery Following the COVID-19 Outbreak." This proclamation followed the president’s tweets about plans to suspend US immigration due to the COVID-19 pandemic. While these developments raised many questions and concerns, as explained in this client alert, the scope of the proclamation is limited. Under the current state of affairs with COVID-19 related closures of consulates and embassies, the proclamation will have no immediate impact. Its overall, long-term, impact will depend largely upon whether it is extended beyond its current 60-day duration.
Scope of Proclamation: Immigrant Visas
The proclamation only applies to the immigrant visa process at the US consulates abroad. That is, it applies only to the final step in the permanent residency (green card) process for individuals who are outside of the United States.
The proclamation does NOT apply to any of the following:
- Individuals seeking green cards from within the United States through adjustment of status.
- Individuals seeking to enter the United States on a temporary basis.
- Foreign nationals who are currently in the United States.
- Any of the multitude of immigration filings processed within the United States.
There are a number of exceptions to the types of cases subject to suspension under the proclamation. These exceptions include:
- Current US permanent residents
- Spouses and minor children of US citizens and prospective adoptees
- Health care workers essential to alleviating the effects of COVID-19
- EB-5 immigrant investors
- Individuals with valid immigrant visas issued before April 23.
- Members of the US armed forces and their spouses and minor children.
- Individuals who would further US law enforcement objectives, whose entry is in the national interest, and who are designated special immigrant translators.
Consulates Ceased Routine Visa Processing a Month Prior to Proclamation
The suspension proclamation will have no immediate impact. As of March 20, routine visa processing at all US embassies and consular posts has been suspended. The visa processing the president suspended under the proclamation had already ceased due to closures. Moreover, there are numerous global travel restrictions: US borders with Canada and Mexico are closed for non-essential travel until at least May 20. With some exceptions, the entry of individuals who were present in China, Iran, the Schengen Area, the UK, and Ireland, during the 14-day period before their attempted entry into the United States has also been suspended.
Of course, the proclamation could be extended and could have an impact if it is still in place when US embassies and consulates reopen. The proclamation also contains a reference to the possibility of additional, more expansive, restrictions on entry to the United States. It is worth noting that the proclamation is based on the economic impact of immigration, not the spread of disease through travel. This sheds light on potential future immigration restriction strategies from the current administration.
Immigration Filings Continue: Compliance is Still Required and Possible
Most immigration filings are made with the US Citizenship and Immigration Services (USCIS). Some immigration filings are made with the US Department of Labor (DOL). USCIS has temporarily suspended non-emergency in-person services, but is otherwise operational. The DOL immigration process operates exclusively online and is fully operational at this time.
It is still possible to make immigration filings with both USCIS and DOL, and it is still necessary to do so in a timely manner. Foreign nationals in the United States are required to maintain their immigration statuses and, where applicable, work authorization. Employers are required to verify employment authorization and engage in all immigration-compliance record keeping and related requirements. See our client advisory on immigration compliance during COVID-19 travel, visa, and worksite disruptions for details.
What to Look for in the Future
The proclamation referred to the possibility of extending the 60-day suspension and additional executive orders. However, there are limitations on presidential powers, which make it more likely that restrictions will target entry to the US rather than immigration benefits within the country. Employment-based immigration benefits are directly tied to the labor market – both for practical reasons and due to labor market testing requirements for certain benefits. It is expected to be more difficult to obtain those benefits that require a labor market test, particularly in hard-hit industries and geographies. As noted, the proclamation’s restrictions are tied to employment and the economy. The administration will need to balance its needs for vital immigrant talent – from doctors to farm workers – with high levels of unemployment. Thus, while the proclamation has no immediate impact, it foreshadows the future of immigration policy and restriction efforts under this administration.
We will continue to monitor developments, but urge all of our clients to continue to comply with the existing immigration laws and maintain immigration status and work authorization, as applicable, through status extensions, other required applications, and ongoing employer compliance. We are here to assist you with your immigration matters. If you have questions, please contact professionals in our Immigration practice.