Summary of the April 22, 2020 Executive Order Temporarily Suspending Some Immigration into the U.S.

23 April 2020 Coronavirus Resource Center:Back to Business Blog
Authors: Roy J. Barquet Vaitiari Rodriguez

Who is subject to the suspension of entry? What is the expiration date of the suspension of entry?

On April 22, 2020, President Trump signed “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.”  The Presidential Proclamation suspends the entry of immigrants into the U.S. for 60 days if: 

  • They are outside the U.S. as of the effective date of the Presidential Proclamation [April 23, 2020];
  • Do not have a valid immigrant visa on the effective date; and
  • Do not have an official travel document other than a visa [i.e. transportation letter, boarding foil, or advance parole document] that is valid on the effective date of the Presidential Proclamation or issued on any date thereafter that permits travel to the U.S. to seek entry or admission.  

The Presidential Proclamation states that those who violate the order “through fraud, willful misrepresentation or illegal entry” will be prioritized for removal from the U.S.

The Presidential Proclamation expires 60 days from its effective date [April 23, 2020] and may be continued as necessary.  Within 50 days from the effective date, the U.S. Department of Homeland Security is required to recommend President Trump whether the President should continue or modify the Presidential Proclamation.

Who is exempt from the suspension of entry? What is the impact of the suspension of entry on nonimmigrant employment-based categories?

The suspension of entry does not affect the filing or processing of applications for adjustment of status to permanent residence in the U.S.  Moreover, nonimmigrant visa holders [i.e. H-1B, L-1, O-1, E-2, etc.] are not included in the Presidential Proclamation.  However, the Presidential Proclamation requires that within 30 days of the effective date, the U.S. Department of Homeland Security and the U.S. Department of Labor review nonimmigrant programs and recommend President Trump appropriate measures to “stimulate the U.S. economy and ensure the prioritization, hiring and employment of United States workers.”  As such, President Trump might enact future restrictions on nonimmigrant employment-based categories.  

In addition to nonimmigrant employment-based categories, the Presidential Proclamation exempts the following classifications and individuals.  It is within the discretion of the consular officer to determine if a foreign national is within one of the exempted categories outlined below:

  • U.S. lawful permanent residents;
  • Foreign nationals seeking to enter the U.S. on an immigrant visa as a physician, nurse or other healthcare professional to perform work essential to the COVID-19 pandemic, as well as their spouses and unmarried children under the age of 21;
  • Foreign nationals applying for the EB-5 immigrant investor visa program;
  • Spouses of U.S. citizens;
  • Children of U.S. citizens under the age of 21 and prospective adoptees seeking to enter on IR-4 or IH-4 visa classifications;
  • Foreign nationals whose entry would further important U.S. law enforcement objectives;
  • Members of the U.S. Armed Forces and their spouses and children;
  • Foreign nationals and their spouses and children seeking to enter the U.S. under a Special Immigrant Visa; and
  • Foreign nationals whose entry is in the U.S. national interest.

What is the immediate impact of the suspension of entry for employers and foreign nationals?

The Presidential Proclamation affects a limited group of prospective U.S. immigrants, specifically foreign nationals who are outside the U.S. on the effective date of the Presidential Proclamation [April 23, 2020] and have not been issued a valid immigrant visa or similar U.S. travel document by a U.S. Consulate.  The Presidential Proclamation is not applicable to foreign nationals already holding a valid U.S. immigrant visa or similar travel document.  Moreover, the Presidential Proclamation does not affect the filing of applications for adjustment of status to permanent residence in the U.S.  Accordingly, the Presidential Proclamation is NOT a complete halt on U.S. immigration. 

In practical terms, the Presidential Proclamation is largely symbolic due to the restrictions already in effect on lawful immigration as a consequence of the coronavirus pandemic.  Previous executive orders [i.e. Proclamation 9984, Proclamation 9992, Proclamation 9993, etc.] suspended entry of certain immigrant and nonimmigrant foreign nationals who were physically present within China, Iran, Schengen Countries, UK, and Ireland, 14 days prior to their entry into the U.S.  President Trump has also indefinitely suspended all routine immigrant and nonimmigrant visa services at all U.S. Embassies and U.S. Consulates.  U.S. Citizenship and Immigration Services also suspended, until at least May 3, 2020, all routine in-person services, including adjustment of status interviews, biometrics appointments, and naturalization oath ceremonies. The U.S. borders with Canada and Mexico are closed for non-essential travel until at least May 20, 2020. 

Foley has created a multi-disciplinary and multi-jurisdictional team, which has prepared a wealth of topical client resources and is prepared to help our clients meet the legal and business challenges that the coronavirus outbreak is creating for stakeholders across a range of industries. Click here for Foley’s Coronavirus Resource Center to stay apprised of relevant developments, insights and resources to support your business during this challenging time. To receive this content directly in your inbox, click here and submit the form. 

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Insights