President Trump has issued a proclamation suspending for 60 days the entry of certain immigrants coming to the U.S. to take up lawful permanent residence, meaning foreign nationals coming to get "green cards". However, as we anticipated in our previous analyses, this ban is much more limited than suggested by Trump's announcement and by media reports yesterday, and can be seen primarily as more of the anti-immigrant political messaging that has defined this administration from the beginning. Actually stopping legal immigration in a comprehensive way (which may be the administration's ultimate objective) would be very harmful to U.S. companies and American families and would have faced legal challenges like those mounted against Trump's previous extreme immigration bans.
Trump's latest anti-immigrant order is not only limited in its scope, but also in its practical effect, given that Trump has already shut down immigration in various ways. First of all, the scope of the order only covers immigrants applying to come to the U.S. as permanent residents ("green card" holders), and does not affect immigrants who already have immigrant visas, or green cards, or certain other travel documents. Only immigrant visa applications from abroad will be paused, applications for permanent residence in the U.S. will continue to be accepted. The order also explicitly exempts spouses or minor children of U.S. citizens, EB-5 immigrant investors, and health care professionals who can assist in the fight against COVID-19, among others. These immigrants are obvious benefits to U.S. citizen families, the economy, and our health care system, and do not easily fit into the administration's anti-immigrant message.
The scope of the Trump order also does not affect what are referred to legally as "non-immigrants", or foreign nationals coming here temporarily. This would include the most common types of skilled worker visas, such as the H-1B visa (which Trump has criticized extensively), and virtually all other types of shorter-term work visas, such as the L-1 intra-company transfer visa and the E-2 investor visa. Banning these types of work visas would have cut off foreign skilled labor, managerial expertise, and investment and would have severely damaged U.S. companies and investment projects and other economic interests of the United States. However, Trump has criticized work visas incessantly and the order suggests measures against nonimmigrant workers might be proposed in 30 days.
Lastly, the practical effect of the new ban at this time may be minimal because Trump has already banned immigration from many (primarily Muslim) countries, and currently U.S. embassies abroad have already been closed for over a month due to COVID-19. U.S. embassies and consulates abroad, which issue new immigrant and non-immigrant visas, have already been closed since mid-March and are not accepting appointments for visa interviews. Therefore, new immigrant visa applications abroad were already not being processed. The closure of embassies and consulates will likely continue for the next two months, in which case the Trump 60-day ban will have little practical effect.
The Presidential proclamation is prefaced with a long justification blaming immigrants for unemployment and damage to the U.S. healthcare system, further suggesting that this order is another anti-immigrant political message, designed to scapegoat and deflect criticism of his COVID-19 response, engendering further chaos and confusion in our already burdensome immigration system, but not effecting significant policy change at this time. While Trump reserved the right to extend and broaden the ban, we will continuously monitor its implementation and any new disruptive policy changes and provide timely updates and advice.
Please do not hesitate to contact us if you have any questions or would like to discuss about the relevant legal issues.
