LegiStorm

Summary:

On April 22, President Trump issued a proclamation suspending entry into the United States of certain aliens (foreign nationals) who are seeking lawful permanent resident (LPR) status (i.e., immigrants). The President justified the suspension as needed to protect American workers from foreign labor force competition during a time of "high domestic unemployment and reduced demand for labor" caused by the coronavirus pandemic. The President cited two immigration-related legal authorities. Under Section 212(f) (8 U.S.C. §1182(f)) of the Immigration and Nationality Act (INA), the President may suspend immigration when it would be detrimental to the interests of the United States. Under INA 215(a) (§8 U.S.C. §1185(a)) the President may prescribe limitations and exceptions on who may enter or depart the United States. How long will the suspension last? The proclamation is effective as of April 24, 2020, and is to remain in effect for 60 days. The Secretaries of the Departments of State (DOS) and Labor (DOL) have 50 days from the proclamation's effective date to advise the president if it should be extended. The proclamation does not contain guidelines for how and when the suspension would be lifted. Who is included in the suspension? Section 2(a) of the proclamation lists three criteria for determining which foreign nationals' entry into the United States as immigrants is suspended. They must be outside of the United States as of April 24, 2020; lack a valid visa as of April 24, 2020; and lack an official travel document other than a visa that is valid as of April 24, 2020, or issued thereafter—examples include a transportation letter, an appropriate boarding foil, or an advance parole document; such documents permit foreign nationals to travel to the United States and seek admission. Specifically, the suspension curtails the overseas portion of four major pathways to acquiring LPR status: family-based, immediate relative parents of adult U.S. citizens; family-based preference immigrants; employment-based immigrants; and diversity visa immigrants. Who is exempted from the suspension? Section 2(b) of the proclamation exempts nine groups of overseas foreign nationals from the suspension: those who possess LPR status; those seeking to enter the United States on immigrant visas to work as physicians, nurses, or other healthcare professionals; to perform coronavirus-related research or work essential to combating or alleviating the effects of the coronavirus pandemic (as determined by the Department of Homeland Security (DHS) or DOS), as well as their spouses and unmarried minor (under age 21) children; those applying for an EB-5 immigrant investor visa; spouses of U.S. citizens; minor children or minor adopted children of U.S. citizens; those whose entry would further important U.S. law enforcement objectives, as determined by DOS or DHS; members of the U.S. Armed Forces and their spouses and children; those seeking to enter the United States with a Special Immigrant Visa from Iraq or Afghanistan who served as interpreters or other employees of the U.S. government (subject to any conditions imposed by DOS), and their spouses and children; and those whose entry would be in the national interest, as determined by DOS or DHS. The proclamation does not impact foreign nationals already residing in the United States who seek to adjust to LPR status from a temporary (nonimmigrant) visa. It also does not affect foreign nationals who seek admission as nonimmigrant foreign workers, such as those with H-1B visas (specialty occupations), H-2A visas (seasonal agricultural workers), or H-2B visas (seasonal non-agricultural workers). The proclamation is not intended to limit any individual's ability to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture. Agency Guidelines The proclamation provides limited guidance for the agencies charged with its implementation. It states that DOS consular officers shall determine whether a foreign national meets the exemption criteria outlined in Section 2(b). Following each agency's normal immigration processing role, DOS is to implement the proclamation as it applies to visas in consultation with DHS, and DHS is to implement the proclamation as it applies to entry of foreign nationals in consultation with DOS. What are some implications of this suspension? The immediate impact is unclear, given that DOS had already suspended overseas visa processing as of March 20, 2020. LPR issuance figures from prior years provide some indication of how many prospective immigrants may be affected. From FY2016 through FY2018, an average of 91,960 individuals acquired LPR status annually as overseas-based immediate relative parents of U.S. citizens; 215,282 as overseas-based family-based preference immigrants; 17,320 as employment-based (EB) immigrants (the first four of the five EB preference categories); and 47,908 as diversity immigrants. Summed together, the average overseas portion of these four groups totals 372,470. On an annual basis, this average total represents an estimated 65% of all overseas-based foreign nationals granted LPR status and 33% of all foreign nationals granted LPR status (based overseas or in the United States). However, if the suspension were to be lifted in 60 days, the estimated percentage of annual immigrant visa applicants subject to its restrictions would comprise 11% of all overseas-based foreign nationals granted LPR status and 5.5% of all foreign nationals granted LPR status (based overseas or in the United States). These computations assume that visas for all four pathways are issued evenly throughout the year (an assumption that may not always apply). If the suspension is relatively brief compared to waiting times already experienced by affected prospective immigrants, many may continue to wait to receive LPR status. Waiting times for U.S.-based prospective immigrants to receive LPR status are likely to decrease, assuming no substantial changes to DHS and DOS resources to adjudicate immigrant petitions to adjust status. Following the suspension's termination, waiting times for most LPR adjudications are likely to increase, assuming DHS and DOS first adjudicate the petitions of those affected by the suspension. The proclamation could be broadened to include certain temporary visas; it currently mandates that DOL and DHS review nonimmigrant programs and make recommendations to stimulate the U.S. economy and facilitate employment of U.S. workers.