On April 22, 2020 President Trump issued a Proclamation temporarily suspending immigration to the United States.
By its terms the proclamation applies to certain immigrants, not persons having nonimmigrant visas or nonimmigrant status. The suspension and limitation on entry applies only to aliens who:
- 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 an official travel document other than a visa (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 thereafter) that permits him or her to travel to the United States and seek entry or admission.
There are numerous exceptions. The suspension and limitation on entry pursuant to the proclamation 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.
Because the Proclamation applies only to intending immigrants who are outside the United States, the consular officer is given the authority to determine, in his or her discretion, whether an immigrant has established his or her eligibility for one of the exceptions in the Proclamation. An alien 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.
Nothing in the Proclamation is to be construed 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.
The proclamation is set to expire 60 days from its effective date—11:59 p.m. eastern daylight time on April 23, 2020—and may be continued as necessary.
Nonimmigrants may not be entirely safe from future action. The Proclamation states that within 30 days of the effective date the Secretary of Labor and the Secretary of Homeland Security are directed to 1) review nonimmigrant programs and 2) recommend other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.
We anticipate that there will be legal challenges to the Proclamation, with the outcome up to the courts. However, there is generally no basis to have a court review a consular officer’s decision not to issue a visa in a specific case.