On April 22, 2020, President Trump issued a presidential proclamation suspending the entry of “aliens as immigrants” for 60 days.
The proclamation goes into effect on April 23, 2020 at 11:59p.m. EDT.
The proclamation expires in 60 days (on June 23, 2020). However, the President may continue the suspension of entry for additional time.
To understand the President’s proclamation, it is important to understand the different mechanisms by which that a foreign national can apply to become a Lawful Permanent Resident of the United States:
1. Immigrant Visa Abroad: Foreign nationals can become Lawful Permanent Residents of the United States through Embassy Processing of an application for an Immigrant Visa abroad. This process is before the U.S. Department of State and includes an interview at a United States embassy abroad. If the case is approved at the embassy, the foreign national is issued an immigrant visa, which the foreign national can use to enter the United States. Once the foreign national successfully enters the United States with the immigrant visa, the foreign national becomes a Lawful Permanent Resident of the United States and their Lawful Permanent Residency card is then issued by the Department of Homeland Security.
2. Adjustment of Status in the USA: Foreign nationals who are currently physically present in the United States, may be eligible to apply for Lawful Permanent Residency (Green Card) through a process called Adjustment of Status. This process occurs inside the United States with the U.S. Citizenship and Immigration Services (USCIS).
The Presidential Proclamation ONLY applies to foreign nationals applying for immigrant visas at U.S. embassies outside of the United States. Importantly, there are many categories of people who are exempt from the rule and should still be able to apply for immigrant visas. These exceptions include:
1. Spouses of United States citizens and children of United States citizens under age 21 (and certain prospective adoptees);
2. Any foreign national applying for an immigrant visa to enter the United States pursuant to the EB-5 Immigrant Investor Program;
3. Any foreign national seeking to enter the United States pursuant to a Special Immigrant Visa in the SI or SQ classification (Afghan and Iraqi nationals who served the U.S. government as translators or in other capacities, and their spouses and children);
4. Individuals who have an official travel document such as a Transportation Letter (a letter issued by U.S. Customs and Border Protection which allows a Lawful Permanent Resident whose Permanent Resident Card has been lost or stolen to enter the United States), a Boarding Foil (a document issued by a U.S. embassy abroad which allows a Lawful Permanent resident whose Permanent Resident Card has been lost or stolen to enter the United States), or an advance parole document, which allows a foreign national to depart and reenter the United States without applying for a visa.
5. Any foreign national seeking to enter the United States on an immigrant visa as a healthcare professional to perform work or research to combat COVID-19, and the foreign national’s spouse and unmarried children under 21 years old;
6. Any foreign national whose entry furthers important United States law enforcement objectives;
7. Any foreign national who is a member of the United States Armed Forces, and the foreign national’s spouse and children;
8. Any foreign national whose entry would be in the national interest.
All foreign nationals who fall under these exceptions are exempt from the Presidential Proclamation’s suspension of entry. Individuals who fall under an exception are still eligible to apply for visas at consulates abroad and enter the United States upon approval of their visa. However, it is important to understand that due to the COVID-19 health crisis, most U.S. embassies are not conducting in-person interviews and therefore, as a practical matter, most visa processing has slowed or stopped entirely for the time being.
It is also important to understand the various other categories that are NOT IMPACTED by the President’s order.
The Presidential Proclamation DOES NOT apply to foreign nationals seeking Lawful Permanent Residency through adjustment of status from inside of the United States.
In addition, the Presidential Proclamation DOES NOT apply to foreign nationals who have been already issued an immigrant visa that is valid on April 23, 2020. Therefore, foreign nationals who have already gone through Embassy Processing and have been issued an immigrant visa can enter the United States with their valid, unexpired immigrant visa in order to become Lawful Permanent Residents of the United States.
The Presidential Proclamation DOES NOT bar people who are already Lawful Permanent Residents (previously approved for lawful permanent residency) of the United States from entering the United States.
The Presidential Proclamation DOES NOT bar foreign nationals from seeking asylum, refugee status, withholding of removal, or protection under the Convention Against Torture in the United States.
Notably, the proclamation also requires the U.S. Departments of State, Homeland Security, and Labor to review nonimmigrant programs and recommend other appropriate measures. It is possible we may see additional restrictions on nonimmigrant visa programs in the coming weeks and months.
President Trump justifies this sweeping suspension of immigration to the United States by citing to the impact of COVID-19 on the United States economy. However, the current crisis has shown the critical role that U.S and foreign-born essential workers play to keep all of us and our families safe.
Unfortunately, the Presidential Proclamation does nothing to keep us safe from COVID-19 and serves as a distraction from what we need to focus on, saving lives and getting through this crisis together. We must stand together to fight this virus.
For more information regarding the impact the Presidential Proclamation may have on your case, please contact Kolko & Casey, P.C.
