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Law360 (April 29, 2020, 2:00 PM EDT )
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| Linda Rose |
Is the proclamation really meant to protect the U.S. workforce? Will it help to stimulate the economy? Or does it mean to link immigrants to the economic damage caused by the spread of COVID-19? Is it a mere deflection from the current state of affairs and the administration's mishandling of the virus containment efforts? Is it a political move and return to the Trump immigration agenda? Does issuing the proclamation interfere with our country's struggle to get the pandemic under control?
Again, it's all debatable. But here's what we know for sure.
The proclamation suspends entry of certain immigrants (a loosely used term)[1] from entering the U.S. The proclamation became effective at 11:59 p.m. on April 23, or for simplicity sake, beginning April 24. It applies to intending immigrants who are outside the U.S. and have no immigrant visa or travel document that would permit entry into the U.S.
In other words, if the U.S. embassy or consulate has not issued the individual an immigrant visa, he or she is not admissible, at least temporarily. Or to state more simply the thrust of the proclamation: No more new immigrant visas.
While this sounds severe (and it can be or might be in the future), the impact is minimal at this time because the U.S. embassies and consulates have suspended visa services and are not issuing visas except in exceptional circumstances. This leads us to the next point of discussion, which is who is not included in the proclamation.
The proclamation specifically excludes the following foreign nationals:
- Lawful permanent residents (see footnote below);
- Physicians, nurses and other health care workers (including their spouses and minor-aged children) who will enter as an immigrant to work in the COVID-19 arena;
- Entrepreneurial investors (EB-5 immigrants);
- Spouses and minor-aged children of U.S. citizens;
- Immigrants whose entry furthers certain law enforcement objectives;
- Members of the armed forces and their spouse and minor-aged children;
- Certain "special immigrants"; and
- Immigrants whose admission would be in our national interest.
A few questions remain.
Who is left in the inadmissibility net?
Family preference immigrants, parents of U.S. citizens, and most immigrant workers who are not in the health care industry or in the national interest.
Is the proclamation permanent?
For now, the proclamation is in effect for the next 60 days. But as Trump announced in his daily update, the terms of the proclamation could change at any time and it can be extended. So there is no end date.
Are nonimmigrants (temporary workers) impacted by this proclamation?
Nonimmigrants such as H-1B professional workers, L-1 international transferees, O-1 extraordinary biomedical researchers, and E-2 small business investors are not covered by the proclamation. But the proclamation reserves the right to address nonimmigrants within the next 30 days.
Suspending the entry of nonimmigrant workers could be devastating to our economy and our nation as a whole.
Imagine excluding doctors from Egypt and nurses from the Philippines who would staff cardiology or oncology departments in hospitals and clinics. Imagine international corporate executives from Japan and Germany who run manufacturing plants that employ hundreds of U.S. workers being denied entry. Or computer specialists from India who have superlative IT knowledge and oversee teams of U.S. workers developing important software and hardware applications.
Excluding nonimmigrants is a very bad idea.
What good might come of this proclamation?
Assuming the suspension will be lifted once the country begins to return to "normal," the suspension might help to clear up some of the immigrant visa backlog for cases that continue to be processed.
Furthermore, if the visa officers are not processing immigrant visas, resources can be shifted to nonimmigrant visas. Perhaps the common delays in the nonimmigrant visa realm will be eliminated and employers will be able to expeditiously bring back needed nonimmigrant (temporary) workers.[2]
This would be particularly important for workers in the health care industry. But it is also important for our economy to issue international transfer visas, professional worker visas, highly skilled worker visas, and investor visas without unnecessary delay.
Conclusion
The proclamation instills fear and uncertainty. It was an unnecessary action taken by the president during an uncertain time. We need to stay focused on stopping, testing and containing the COVID-19 virus; we should not be distracted by an unrelated, non-emergency political issue.
Linda Rose is the managing partner of Rose Immigration Law Firm PLC.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] The term "immigrant" from a legal perspective refers to a lawful permanent resident or permanent resident alien, which is defined by the U.S. Department of Homeland Security as follows:
Permanent Resident Alien - An alien admitted to the United States as a lawful permanent resident. Permanent residents are also commonly referred to as immigrants; however, the Immigration and Nationality Act (INA) broadly defines an immigrant as any alien in the United States, except one legally admitted under specific nonimmigrant categories (INA section 101(a)(15)). An illegal alien who entered the United States without inspection, for example, would be strictly defined as an immigrant under the INA but is not a permanent resident alien. Lawful permanent residents are legally accorded the privilege of residing permanently in the United States. They may be issued immigrant visas by the Department of State overseas or adjusted to permanent resident status by the Department of Homeland Security in the United States.
https://www.dhs.gov/immigration-statistics/data-standards-and-definitions/definition-terms#permanent_resident_alien
[2] We need temporary nonimmigrant workers to revive our economy as expeditiously as possible. It is hoped the administration will recognize this when Trump and his advisers review the nonimmigrant classifications.
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