Last night, the President signed the promised Executive Order, which limits LEGAL immigration into the U.S. (meaning entering with an immigrant visa, not a nonimmigrant visa) for foreign nationals who meet the following criteria:
- Are outside the U.S. on April 23, 2020;
- Do not have an immigrant visa stamp in their passport that is valid on April 23, 2020; 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 seems BROAD, but the reality is there are MANY exceptions: These people are exempt from the executive order and may still enter the United States as immigrants:
- Lawful Permanent Residents (current green card holders);
- Foreign Nationals entering 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 combatting, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak; and any spouse and unmarried children under 21 years old of any such foreign national who are accompanying or following to join;
- EB-5 investors;
- Spouses of U.S. Citizens and children of U.S. Citizens under the age of 21;
- Foreign nationals whose presence in the U.S. is in the “national interest” (undefined);
- Foreign nationals whose entry furthers U.S. law enforcement objectives (undefined); and
- Asylum seekers and certain Special Immigrant entrants such as Iraqi and Afghani nationals who have assisted the U.S. military.
The new travel ban will be implemented in two main ways.
First, the U.S. Consulates and Embassies abroad will no longer issue Immigrant Visas to those who do not qualify for one of the above-mentioned exceptions. Of course, U.S. consulates around the world have been closed for 45 days, and many will still be closed 60 days from now, meaning the order, as least in those countries is meaningless, absent an extension (which we expect Trump to use for political reasons). Green card and nonimmigrant processes inside the U.S. are unaffected.
Second, CBP Officers will not admit anyone into the U.S. to those who do not meet the above-mentioned exceptions. According to the Executive Order, foreign nationals who circumvent these restrictions will be found removable for willful misrepresentation and fraud.
The Executive Order does not affect:
- The processing by USCIS of petitions for foreign nationals in the United States or abroad, such as Form I-130, Petition for Alien Relative and/or Form I-140, Petition for Alien Worker;
- The processing by USCIS of green cards in the United States for any foreign national in the U.S. who is eligible to apply for adjustment of status through Form I-485; and
- Foreign nationals who are outside the U.S. and seeking to enter on a nonimmigrant visa, classes of which include B, H, L, B, E, F, J, TN, O, P, or R visas
And, even though the Executive Order does not currently affect nonimmigrants, it does contain this little “gem,” directing the Secretaries of the U.S. Department of Labor and the Department Homeland Security to review all nonimmigrant programs to assess whether any of the programs can be modified so as to “stimulate the United States economy and ensure the prioritization, hiring, and employment of United States.” Both Secretaries will report back to the President on or about May 22, 2020. This is clearly an attempt to try to limit legal immigration through regulation, something that Trump and his minions have not been able to do through policy changes or legislation. (Yes, we know it sounds a LOT like what Republicans complained that President Obama did in creating the DACA program, but we won’t quibble about that now).
If you need more detailed advise on how this change affects your business operations, or if you are an individual seeking guidance on your pending or future immigration case, please know that a Kuck Baxter Immigration attorney remains available to answer any questions that you have.