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Law360 (June 8, 2020, 6:22 PM EDT )
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| Dominique Pando Bucci |
An analysis of U.S. Department of Homeland Security data[2] demonstrates that the proclamation would reduce the total number of immigrants who can obtain green cards by a projected 31%.
The COVID-19 immigrant visa proclamation impacts individuals waiting for immigrant visas abroad, including certain family members of U.S. citizens and residents, diversity visa applicants and employment-based applicants.
Exemptions exist for spouses and children under 21 of U.S. citizens, EB-5 investors, health care professionals, COVID-19 researchers, essential workers, individuals whose entry is in the national interest, and others.
Adjustment of status applicants living in the U.S, nonimmigrant visa applicants and current immigrant visa holders are not affected by the proclamation.
The Numbers
Over 1 million immigrants became lawful permanent residents in fiscal year 2019.[3]
Forty-nine percent obtained their status as immediate relatives of U.S. citizens, 19.8% under a family-sponsored preference category, 13.5% under an employment-based preference category, 7.9% were refugees and 4.2% immigrated under the diversity visa program.
Less than half (459,000) of new immigrants obtained their green cards through consular processing.[4] The majority (572,000) adjusted status from within the U.S.
Projected Effect on the U.S. Labor Market
The answer to soaring unemployment is not a ban on immigration.
Shutting down immigration will not reduce unemployment in any significant way. Less than 315,759 immigrants, including stay-at-home spouses and children, would be excluded from the U.S. if the proclamation remained in effect for one year.[5]
This represents less than 1% of jobs lost, as more than 40 million Americans have filed for unemployment benefits since the outbreak of COVID-19 in March.[6] And U.S. workers are not necessarily able, willing or qualified to fill the vacancies.
The proclamation also disregards that immigrants create jobs for Americans[7] and increase innovation, productivity and profits.[8] Lost will be all jobs that would have been created by foreign entrepreneurs, artists, athletes, scientists, researchers, professors, multinational managers and executives, skilled workers, and other immigrants in pursuit of the American dream.
Who Is Impacted?
Impacted visa categories (immigrant visas issued in fiscal year 2019 are noted, where data is available):[9]
- All family-sponsored preferences, including unmarried sons and daughters of U.S. citizens and their children; spouses, children and unmarried sons and daughters of lawful permanent residents; children of spouses of lawful permanent residents; married sons and daughters of U.S. citizens and their spouses and children; brothers and sisters of U.S. citizens and their spouses and children — 184,912;
- Parents of U.S. citizens — 66,782;
- Diversity — 42,437; and
- Employment-based preferences (except EB-5) — 21,272.
Who Is Exempt?
- Lawful permanent residents;
- Physicians, nurses, other health care professionals, and their spouses and children under 21;
- Medical and COVID-19 researchers, and their spouses and children under 21;
- Individuals who "perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak," and their spouses and children under 21;
- Spouses of U.S. Citizens — 86,497;
- Children under 21 of U.S. Citizens and certain adoptees — 40,606;
- Certain Iraqis and Afghans employed by the U.S. Government (Si or SQ classification), and their spouses and children — 8,058;
- EB-5 investors — 7,461;
- Individuals who "further important [U.S.] law enforcement objectives," potentially including victims of crimes — 116;
- Members of the U.S. Armed Forces, and their spouses and children;
- Individuals whose entry would be "in the national interest," such as potentially National Interest Waiver EB-2 applicants; and
- Children born abroad to lawful permanent residents who do not require visas — 59.
The proclamation does not affect individuals seeking asylum, refugee status, withholding of removal or protection under the Convention Against Torture.
Projected Effect on Specific Immigrant Classes of Admission
Family reunification is the channel of migration that is affected the most by the proclamation. Approximately 80% of the total number of individuals suspended from entering the U.S. are family members of U.S. citizens and lawful permanent residents, 13% are diversity visa applicants and 7% are employment-based immigrants.
Implementation of the Proclamation
The proclamation will be enforced by consular officers once U.S. embassies and consulates reopen. Routine visa services, including immigrant visa interviews, have been suspended worldwide since March 20, due to COVID-19.[10]
Although the U.S. Department of State has yet to issue guidance about the visa adjudication process, consular officers may follow the first two steps of the so-called Travel Ban 3.0 analysis, based on the president's suspension of entry proclamation, issued Sept. 24, 2017: (1) Determine eligibility for the visa category; and (2) determine whether the applicant falls under an exemption.[11]
This travel ban should not dissuade petitioners from filing underlying immigrant petitions (on Forms I-130, I-140, I-360, etc.) with U.S. Citizenship and Immigration Services.
Even where an exemption may not apply, filing an immigrant petition now will secure a priority date. The National Visa Center also continues to preprocess all immigrant visa applications.
Attorneys should prepare an exemption packet for the consular interview that demonstrates that the applicant is exempt from suspension of entry under Section 2(b) of the proclamation.
Arguing the Essential Worker Exemption
A strong legal argument to exempt an immigrant visa applicant from the travel ban can be made under Section 2(b)(ii) of the proclamation, which exempts foreign nationals who will "perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak."
The U.S. Department of Homeland Security's "Advisory Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response"[12] provides guidance.
The memorandum identifies as essential during the COVID-19 pandemic:
Intending immigrants in these industries should be exempt from the travel ban. They perform essential work to combat, assist in the recovery from, and alleviate the social and economic effects of the COVID-19 outbreak.workers who conduct a range of operations and services that are typically essential to continued critical infrastructure viability, including staffing operations centers, maintaining and repairing critical infrastructure, operating call centers, working construction, and performing operational functions [as well as] workers who support crucial supply chains and enable functions for critical infrastructure [in industries such as] medical and [health care], telecommunications, information technology systems, defense, food and agriculture, transportation and logistics, energy, water and wastewater, law enforcement, and public works.
Long-Term Vision for the Proclamation
The proclamation is set to expire on June 22, but the current administration is expected to renew the ban[13] until the U.S. economy recovers from the COVID-19 pandemic.
In reality, the immigrant visa ban is likely to remain in effect until a subsequent president revokes the proclamation.
Challenging the Proclamation
Under Section 212(f) of the Immigration and Nationality Act, the president has the authority to suspend by proclamation the entry of immigrants and nonimmigrants whose entry would be detrimental to U.S. interests.
This administration has used Section 212(f) in a way that no one has ever contemplated for it to be used: to rewrite our immigration system.
A reasonable observer would conclude that this immigrant visa ban is overly broad, and does little to further the government's interest in protecting jobs during the coronavirus crisis.[14]
Nevertheless, courts are likely to uphold the immigrant visa ban. It is modeled after the suspension of entry proclamation issued in September 2017,[15] which the U.S. Supreme Court, in a 5-4 ruling, held to be a valid exercise of the president's power under Section 212(f) of the INA in Trump v. Hawaii[16].
One notable distinction is that the Travel Ban 3.0 provides for waivers, whereas this proclamation does not.
The Future of Nonimmigrant Programs
An estimated 2.3 million nonimmigrant workers, students, exchange visitors, diplomats and other representatives reside in the U.S.[17]
The proclamation directs the secretaries of the U.S. Department of Labor and Homeland Security, in consultation with the secretary of the U.S. Department of State, to recommend to the president additional measures to prioritize U.S. workers.
A nonimmigrant visa proclamation is anticipated that would suspend the entry of temporary workers, including H and L visas.[18] Such a proclamation could potentially exclude 777,013 temporary workers, and multinational managers and executives, over the period of one year, based on fiscal year 2019 data.[19]
The proclamation may also restrict the entry of 393,590 J-1 exchange visitors and Q-1 cultural exchange program participants.[20]
Further, F-1 students may be barred from seeking optional practical training status to work in the U.S.
In the 2018-19 academic year, 223,085 students were engaged in optional practical training programs.[21]
Temporary workers who are already living in the U.S. and are participating in the U.S. labor market are not likely to be targeted.[22]
Proclamations under Section 212(f) of the INA may only restrict the entry of foreign nationals to the U.S. Proclamations cannot be used to deny applications to extend, change or adjust status within the U.S.
Employees returning to the U.S. on valid work visas may undergo heightened scrutiny by U.S. Customs and Border Protection to ensure that they are going back to jobs that still exist. Additionally, B-1/B-2 visitors may bear a higher burden to prove their nonimmigrant intent, and that they are not trying to circumvent entry restrictions to change or adjust status once in the U.S.
Conclusion
America's promise of opportunity is unique in the world, and it attracts global talent. But the COVID-19 immigrant visa proclamation and expected nonimmigrant visa proclamation dramatically restrict immigration for the foreseeable future.
Immigrants contribute to the U.S. economy in many ways. They are entrepreneurs and innovators. They create and support U.S. jobs. They work the unpleasant, physically demanding jobs that U.S. workers are not willing to do. And many are essential workers who support the supply chain and work in critical industries such as health care, food and agriculture, and transportation.
The coronavirus pandemic has thrown the U.S labor market and economy into turmoil. And I, too, wish to go back to pre-COVID-19 times. But anti-immigrant policies are not the answer.
This immigration proclamation is simply a political tool. Touted as a solution to unemployment, it does not get to the root of the problem. Its measures are out of touch with the needs of the American people. And its main effect is to keep families separated.
As our immigration system is being rewritten by executive proclamation, we need to accept this new normal and focus our efforts to zealously advocate for our clients. This too shall pass.
Dominique Pando Bucci is an associate at Kurzban Kurzban Tetzeli and Pratt PA and a German Chancellor Fellow of the Alexander von Humboldt Foundation.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, 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] Presidential Proclamation No. 10014, 85 Fed. Reg. 23,441 (Apr. 27, 2020), https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-immigrants-present-risk-u-s-labor-market-economic-recovery-following-covid-19-outbreak/.
[2] Legal Immigration and Adjustment of Status Report FY2019, Quarter 4, Excel Chart, Dep't of Homeland Sec., https://www.dhs.gov/sites/default/files/publications/immigration-statistics/liasr/fy2019_ q4_d_final.xlsx.
[3] Legal Immigration and Adjustment of Status Report Fiscal Year 2019, Quarter 4, Dep't of Homeland Sec., https://www.dhs.gov/immigration-statistics/special-reports/legal-immigration.
[4] Legal Immigration and Adjustment of Status Report Fiscal Year 2019, Quarter 4, Dep't of Homeland Sec., https://www.dhs.gov/immigration-statistics/special-reports/legal-immigration.
[5] Legal Immigration and Adjustment of Status Report FY2019, Quarter 4, Excel Chart, Dep't of Homeland Sec., https://www.dhs.gov/sites/default/files/publications/immigration-statistics/liasr/fy2019_ q4_d_final.xlsx.
[6] Patricia Cohen, 'Still Catching Up': Jobless Numbers May Not Tell Full Story, NY Times (May 28, 2020), https://www.nytimes.com/2020/05/28/business/economy/coronavirus-unemployment-claims.html.
[7] Madeline Zavodny, Immigration, Unemployment and Labor Force Participation in the United States, Nat'l Foundation for American Policy (May 2018), https://nfap.com/wp-content/uploads/2018/05/IMMIGRANTS-AND-JOBS.NFAP-Policy-Brief.May-2018-1.pdf.
[8] Madeline Zavodny, The Impact of H-1B Visa Holders on the U.S. Workforce, Nat'l Foundation for American Policy (May 2020), https://nfap.com/wp-content/uploads/2020/05/The-Impact-of-H-1B-Visa-Holders-on-the-U.S.-Workforce.NFAP-Policy-Brief.May-2020.pdf.
[9] Legal Immigration and Adjustment of Status Report FY2019, Quarter 4, Excel Chart, Dep't of Homeland Sec., https://www.dhs.gov/sites/default/files/publications/immigration-statistics/liasr/fy2019_ q4_d_final.xlsx.
[10] Suspension of Routine Visa Services, U.S. Dep't of State, Bureau of Consular Affairs (Mar. 20, 2020), https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html.
[11] Practice Pointer: Applying for a Waiver Pursuant to Presidential Proclamation 9645 (Travel Ban 3.0), AILA Doc. No. 18032130 (Nov. 29, 2018), https://www.aila.org/infonet/applying-for-a-waiver-pursuant-to-presidential.
[12] Advisory Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response, U.S. Dep't of Homeland Sec., Cybersec. & Infrastructure Sec. Agency (Apr. 17, 2020), https://www.cisa. gov/publication/guidance-essential-critical-infrastructure-workforce.
[13] See Nick Miroff & Josh Dawsey, Stephen Miller has Long-term Vision for Trump's "Temporary" Immigration Order, According to Private Call with Supporters, Wash. Post (Apr. 24, 2020), https://www.washingtonpost.com/ immigration/stephen-miller-audio-immigration-coronavirus/2020/04/24/8eaf59ba-8631-11ea-9728-c74380d9d410_ story.html.
[14] See Jennifer M. Chacón & Erwin Chemerinsky, No, Mr. President, Your Immigration Powers Are Not Unlimited, NY Times (Apr. 22, 2020), https://www.nytimes.com/2020/04/22/opinion/trump-immigration-executive-order.html.
[15] Presidential Proclamation No. 9645, 82 Fed. Reg. 45,161 (Sept. 27, 2017), https://www.whitehouse.gov/ presidential-actions/presidential-proclamation-enhancing-vetting-capabilities-processes-detecting-attempted-entry-united-states-terrorists-public-safety-threats/.
[16] Trump v. Hawaii
, 138 S. Ct. 2392 (2018), https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf.[17] Bryan Baker, Nonimmigrants Residing in the United States: Fiscal Year 2016, Dep't of Homeland Sec. (Mar. 2018), https://www.dhs.gov/sites/default/files/publications/Nonimmigrant_Population%20Estimates_2016_0.pdf.
[18] See Letter to White House from Four Senators Urging Suspension of New Guest Worker Visas (May 7, 2020), https://www.cotton.senate.gov/files/documents/200507%20Cotton%20Immigration%20Letter.pdf.
[19] Classes of Nonimmigrants Issued Visas (Including Border Crossing Cards), Fiscal Years 2015-2019, Dep't of State, https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2019AnnualReport/FY19AnnualReport-TableXVI-A.pdf.
[20] Classes of Nonimmigrants Issued Visas (Including Border Crossing Cards), Fiscal Years 2015-2019, Dep't of State, https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2019AnnualReport/FY19AnnualReport-TableXVI-A.pdf.
[21] Number of International Students in the United States Hits All-Time High, Institute of International Education (Nov. 18, 2019), https://www.iie.org/Why-IIE/Announcements/2019/11/Number-of-International-Students-in-the-United-States-Hits-All-Time-High.
[22] See Acting DHS Secretary: It's Important to Protect American Jobs as We Reopen the Economy, Fox News (Apr. 23, 2020), https://video.foxnews.com/v/6151709380001#sp=show-clips.
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