By KoKo Huang
On April 22, 2020, President Trump signed an executive order limiting immigration, temporarily blocking entry into the United States of certain foreign nationals currently outside of the United States seeking U.S. permanent residency. The order goes into effect at 11:59 p.m. EDT on April 23, 2020, and will be in effect for at least 60 days. Importantly, the order does not apply to temporary workers, such as those with H-1B, H-2B, L-1, or TN visa status. The limitation only applies to individuals who are outside of the United States, do not have valid immigrant visas issued before the effective date of the order, and do not otherwise have official travel documents other than an immigrant visa issued before the effective date of the order.
While the order is focused on prospective immigrants outside the United States, there are several exemptions, which include, but are not limited to, the following individuals:
- health care professionals or medical researchers seeking to enter the United States to perform medical research or work essential to combating COVID-19;
- foreign investors applying for EB-5 immigrant investor program visas;
- spouses of U.S. citizens;
- children under 21 years of age of U.S. citizens; and
- members of the United States armed forces.
Spouses and children of many of these exempted classes will also be exempt from the order.
The order offers as rationale that it is justified as a measure to protect American workers who lost their jobs due to the coronavirus pandemic by preventing foreign workers from competing for available jobs. In issuing the order, President Trump pointed to his authority under sections 212(f) and 215(a) of the Immigration and Nationality Act, which have been interpreted by the administration to give the president broad authority over immigration. It is likely that the order will be challenged in federal court.
The scope of the order and ban was limited from what was anticipated based on President Trump’s tweet on Monday and statements at his press conference the following day. The immediate implications of the ban are likely to be minimal, since the U.S. Department of State has suspended routine visa services at consular offices abroad due to COVID-19 for some time already. This means that those outside the United States have been waiting for immigrant visas. If the ban is extended after the U.S. consulates and embassies reopen, it could prevent individuals from entering the United States as permanent residents for a longer period.
While temporary workers such as those with H-1B, H-2B, L-1, or TN status are not affected currently, that may change in the future. The order requires that within 30 days of the effective date, the Secretaries of Labor and Department of Homeland Security, in consultation with the Secretary of State, review nonimmigrant or temporary worker visa programs and recommend to the president other appropriate measures to stimulate the U.S. economy and ensure “the prioritization, hiring and employment” of U.S. workers.
We will continue to monitor any developments regarding the order and any future travel restrictions into the United States.*
*On December 31, 2020, the Trump administration issued a presidential proclamation extending the ban of entry for certain nonimmigrant and immigrant visas to March 31, 2021.