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Executive Order Suspending Immigration: Who is Affected and Who is Not

Late Wednesday the president issued an executive order limiting the issuance of immigrant visas at U.S. consulates abroad.  This article reviews exactly who is—and who is not—subject to the order.  With notable exceptions, those most affected are nearly all categories of business-based immigration and most family-based immigrants.

One of the stated purposes of the order is to, “conserve critical State Department resources,” during the national emergency, which overlooks the fact that all U.S. consulates are currently closed and not issuing visas of any type in any event.  That fact means that the impact of the order currently is very limited but may lead to speculation as to whether the order is contemplated to continue beyond the re-opening of the consulates.

The order temporarily suspends entry of certain immigrants; it does not (yet) affect temporary visas:

The order suspends entry into the U.S. of immigrants in certain categories as opposed to non-immigrants.  Immigrants are those entering the U.S. with a visa that allows them to reside in the country indefinitely; those with so-called “green cards.”  The order does not yet affect non-immigrants, who are those entering in any one of many different categories authorized to remain in the U.S. for a limited period.  Non-immigrant visas that are not impacted by the order include all types of H visas, TN, E, B, O, L, or any other temporary visa.  However, see below.  The order expressly contemplates a review in 30 days of whether it will be expanded to non-immigrant categories.

The order does not apply to those seeking to adjust status within the U.S.

Those who qualify to adjust status within in the U.S. to that of lawful permanent resident likewise are not affected.

The order applies to:

Subject to a number of exceptions explained below, the order suspends issuance of immigrant visas abroad to specific categories of applicants.  Specifically, those who:

  • Are outside the United States on the effective date of the proclamation (April 23, 2020);
  • Have not already been issued an immigrant visa that is valid on the effective date of the 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 him or her to travel to the United States and seek entry or admission.

Those who already had their interview at a U.S. consulate abroad and were issued an immigrant visa, but had not yet actually entered the U.S., may do so (pending other travel restrictions apart from the visa issue).  Those travelling abroad on an advance parole document whose adjustment of status in the U.S. remains pending, may return.

EXCEPTIONS:

The suspension and limitation on entry of immigrants shall not apply to:

  • any lawful permanent resident of the United States, meaning those who already were permanent residents (so-called green card holders) who had travelled abroad prior to issuance of the order, may return;
  • 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.; or 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.

“National Interest” is defined for immigration purposes in existing regulations and caselaw—for purposes of waiving a labor certification from the Department of Labor.  The term is not defined in the order.  In the opinion of this article, the term should be interpreted expansively, because the very premise upon which the order is issued lies in the pervasive national emergency causing nationwide healthcare overload and economic breakdown.

Whether an exception is established is up to the discretion of the government:

Note the order instructs the Department of State (DOS) to work in consultation with the Department of Homeland Security (DHS), and gives discretion to DOS and DHS officers to determine whether they agree the person seeking admission to the U.S. has established they fall under one of the exceptions.  As a result, the person seeking entry will want to make sure they have a solid packet of evidence to establish the criteria for the exception.  We recommend working with an experienced immigration lawyer to do that.

Can a denial be appealed?

Note that if an application is made for one of the exceptions, and it is denied, the order does not mention any ability or procedure to appeal or request the decision be reconsidered.  We recommend working with an experienced attorney to follow existing procedures to request reconsideration or administrative appeal.  However, in conjunction with other existing provisions of law, the ability to seek judicial review may be limited by the express provision that any decision is discretionary.  Be mindful time limits apply to file an appeal.

Who is affected after the exceptions?

After the exceptions mentioned above, those who are prevented from immigrating include (this list is not exhaustive):

  1. Business-based immigrant categories that are suspended, unless they fall into an exception above, include:
    1. Foreign nationals of “extraordinary ability,” which is an extremely high standard defined by law
    2. Outstanding researchers/professors
    3. International executives/managers (note the L non-immigrant category is not yet affected, but those applying for permanent residence are suspended)
    4. Foreign nationals of “exceptional ability,” which is also a very high standard defined by law, unless the work they are doing is deemed in the national interest.
    5. Licensed professionals with an advanced degree. Note this category does not include anyone with an advanced degree, but only those in professions requiring a license who also have an advanced degree
    6. Skilled workers
    7. Religious workers

     

  2. Family-based categories that are suspended include:
    1. Children of U.S. citizens who are 21 years old or older
    2. Spouses and minor children of permanent residents
    3. Siblings of U.S. citizens

Exceptions for those seeking certain forms of relief:

Though not listed in the section providing for exceptions: the enforcement section of the order adds the order will not limit the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, consistent with the laws of the United States.

Violators are a “priority for removal”

An alien who circumvents the application of the proclamation through fraud, willful misrepresentation of a material fact, or illegal entry shall be a priority for removal by the Department of Homeland Security.  Note that if an application is denied it does not mean the applicant committed fraud.  An application can be a perfectly legitimate request that is simply adjudicated not to meet the criteria.  That is very different from fraud or willful misrepresentation as defined by U.S. immigration law.

The order is set to last for 60 days, but can be extended—or modified:

The proclamation became effective 11:59 P.M. eastern daylight time on April 23, 2020.  It shall expire 60 days from its effective date but may be continued as necessary.  The order instructs that at any time during the 60 days, but no later than 50 days after it becomes effective, the Secretary of Homeland Security shall, in consultation with the Secretary of State and the Secretary of Labor, recommend to the president whether it should be continued or modified.  Of course, the, “or modified” language is a potential concern in the event the order may be expanded.  We will continue to monitor developments.

Within 30 days the order may be expanded to include non-immigrant, or temporary, visas:

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, are instructed to review nonimmigrant programs. This provision contradicts statements made at the press conference assuring that temporary visas, such as those for farmworkers, will not be affected.  Many foreign nationals in the U.S. in a temporary status work in essential industries including doctors, nurses, other healthcare providers, caregivers, essential high-tech workers including telecommunications and infrastructure, and, of course, farmworkers working to prevent further disruption to the food supply.