4.23.20

On April 22, President Trump issued a Presidential Proclamation that suspends the ability of some foreign nationals living abroad to seek entry to the United States based on their applications for immigration status, more commonly known as “green cards.” This proclamation becomes effective tonight at 11:59 p.m. ET. It is effective for at least 60 days, and may be extended thereafter.

Who is affected?

The proclamation applies only to foreign nationals who are seeking immigrant visas (“green cards”), and who meet the following criteria:

  • Are outside the United States on the effective date of the Proclamation;

  • Do not have an immigrant visa that is valid on the effective date of the Proclamation; and

  • Do not have another official travel document (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of the Proclamation, or issued on any date afterward, that allows the individual to travel to the United States and seek entry or admission.

Therefore, at this time, foreign nationals who are current holders of nonimmigrant visas -- such as an H-1B, L-1, or TN -- are not affected by the Proclamation. The Proclamation also does not apply to individuals currently working in the United States and being sponsored by their employers for the PERM (green card) process, or who are applying for a green card through other means (for example, a family relationship).

Are there any specific exclusions in the Proclamation?

Yes, quite a few. The Proclamation specifically states that it does not apply to

  • any lawful permanent resident of the United States;

  • 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; and 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.

(Quoted from Section 2(b) of the Proclamation.)

Refugees and those seeking asylum

The Proclamation says that its purpose is not “to 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.”

Enforcement

The Proclamation gives discretion to the consular officer to decide whether one of the exceptions listed above applies. The Secretary of State is given authority to establish procedures and implement the Proclamation with respect to visas. The Secretary of Homeland Security has corresponding authority as the Proclamation “applies to the entry of aliens . . ..”

Any foreign national “who circumvents the application of this proclamation through fraud, willful misrepresentation of a material fact, or illegal entry shall be a priority for removal by the Department of Homeland Security.”

Additional measures

Within 30 days of the effective date, the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State, must review nonimmigrant programs and make recommendations to the President “on other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”

An Administration press release regarding the Proclamation is available here.

We will continue to keep you up to date.

For a printer-friendly copy, click here.

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