By Robert P. Gaffney, Esq.

The COVID-19 pandemic has materially disrupted life for people in the United States and around the world. Amidst a stream of criticism for its ineffective response to the pandemic, the current administration in Washington has on April 22 issued an executive order entitled  “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.”

By its terms, the Proclamation temporarily suspends the entry to the U.S. of many classes of immigrants for an initial period of 60 days, subject to further extension “as necessary.” Viewed in the context of an election year, this latest executive order evidences an ongoing effort on the part of the present administration to leverage a global public health emergency in pursuit of its political agenda to restrict legal immigration to the United States.

Who is affected by the new visa constraints?

It is important to note that the new visa ban is not universal. The proclamation only applies to foreign persons seeking entry to the U.S. as immigrants who:

  • Are outside the United States on the effective date of the proclamation;
  • Do not have an immigrant visa that is valid on April 23, 2020, 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.

Included within the scope of the temporary suspension, subject to narrow exemptions, are most categories of employment-based and family-based immigrants including parents of U.S. citizens and the spouses and adult children of U.S. “green card” holders.

What individuals are not affected by the ban?

Importantly, the proclamation does not impact the ability of an otherwise qualified foreign national in the United States from filing, or U.S Citizenship & Immigration Services from approving, an application to adjust status to that of a U.S. lawful permanent resident under any of the existing employment or family-based immigrant visa classifications.

The proclamation lists the following exemptions from the scope of the immigrant entry ban:

  • Lawful permanent residents
  • Any foreign persons seeking entry as a health care professional slated to work on COVID-19 research or abatement
  • Immigrant investor applicants under the EB-5 immigrant investor program
  • Any foreign spouse of an American citizen
  • Minor children (under 21) or prospective adoptees of a U.S. citizen
  • Any foreign person whose entry would further important US law enforcement objectives as recommended by and determined by relevant US government officials
  • Armed forces servicemembers and their family members
  • Certain Afghan or Iraqi nationals qualified for Special Immigrant Visas and their family members
  • Any alien whose entry would be in the national interest as determined by the U.S. Department of State or Department of Homeland Security

What is the stated rationale for the proclamation?

The Presidential Proclamation directly cites a markedly challenged U.S. economy as the core catalyst driving new policy which, by its terms, will remain in place for at least for 60 days following enactment, subject to further extensions “as necessary.” Consistent with the White House’s restrictionist agenda, the proclamation further instructs the U.S. Departments of Homeland Security and Labor within 30 days to review nonimmigrant programs and make recommendations to the President of “other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”

The proclamation claims that the restrictions contained in the proclamation are driven by the current high unemployment rate coupled with low labor demand and the desire to protect domestic workers from a perceived “threat of competition for scarce jobs from new residents.” The proclamation further makes the unsubstantiated claim that new visa holders coming into the country presently to work would unduly strain an overwhelmed medical system “at a time when we need to prioritize Americans and the existing immigrant population.”

While the announcement of this latest proclamation is certainly attention grabbing, in practical terms it may have little real world impact on intending immigrant visa applicants, who are already prevented from applying for their visas due to the Department of State’s temporary suspension as of March 20 of all routine visa services at Embassies and Consulates around the world.

The bottom line: the order stresses sound legal advice

The proclamation is obviously a document marked by complexity and a material degree of fluidity. It is too early to tell how specific circumstances will play out in given cases, especially given the discretion of U.S. consular officers across the globe in making individual eligibility determinations.

There are likely to be many questions and concerns – as well as opportunities – relevant to the proclamation’s provisions. The legal team at Law Offices of Robert P. Gaffney has a demonstrated record of successful client advocacy in immigrations matters and is available to provide results-driven representation during these challenging times. Call 415-503-9653 to arrange a consultation with one of our lawyers.