This updates our Legal Alert of April 22, 2020, discussing President Trump's tweet that he will "... temporarily suspend immigration into the United States!" While the tweet lacked details, the President subsequently issued a limited Presidential Proclamation impacting U.S. immigration effective Thursday, April 23, 2020 at 11:59pm (EST). Citing the high U.S. unemployment rate and the need to protect jobs for Americans, the Proclamation temporarily suspends the issuance of immigrant visas ("green cards") to individuals who are outside the U.S. and who do not already hold a green card or other official travel document authorizing their immigrant entry to the U.S. An immigrant visa or "green card" confers permanent residence in the United States. The temporary green card suspension is in effect for 60 days, or until June 23, 2020. Within 50 days, however, the government will determine whether to extend it.
This Proclamation does not have any impact on foreign nationals who are inside the U.S. pursuing a green card or those who already hold green cards. In addition, the announcement does not affect temporary nonimmigrant work visa programs such as H-1B, L-1, or TN, but specifically directs the Department of Homeland Security and the Department of Labor to make recommendations to the Administration in the nonimmigrant arenas within 30 days.
There are several exceptions to the temporary 60-day green card moratorium including:
- Lawful permanent residents (LPR)
- Physicians, nurses, or other healthcare professionals seeking to perform medical research or other research intended to combat the spread of COVID-19
- EB-5 Immigrant Investors
- Spouses of U.S. citizens
- Children of U.S. citizens under the age of 21 and prospective adoptees seeking to enter on an IR-4 or IH-4
- Individuals who would further important U.S. law enforcement objectives
- Members of the U.S. Armed Forces and their spouses and children
- Special Immigrant Visas as an Afghan or Iraqi translator/interpreter or U.S. Government Employee (SI or SQ classification)
- Individuals whose entry would be in the national interest
Employers' Bottom Line
On a practical level, employers should not feel much, if any, additional disruption to their foreign employee workforces due to this Proclamation because U.S. immigration operations had already been substantially disrupted and slowed by previous actions taken by the Administration to stem the spread of the novel coronavirus. Specifically, in mid-March, the State Department suspended routine visa processing services provided by all U.S. Consulates and U.S. Embassies outside of the U.S., including green cards, so this Proclamation is redundant in its effect. This suspension and other changes to immigration processing caused by the COVID-19 pandemic are discussed in our April 23, 2020 Alert.
Since overseas visa processing services have been suspended, U.S. employers are mostly limited to processing immigration benefits inside the U.S. through the U.S. Citizenship and Immigration Services ("USCIS"). Because the Administration will be reviewing over the next thirty days whether it should also restrict or limit temporary nonimmigrant visa programs, companies are well-advised to focus on timely filing visa extensions with USCIS as early as feasible to maximize a worker's legal status and work authorization in the event of administrative disruptions. Most extensions can be filed up to six months in advance. By timely filing extensions, many foreign workers will benefit from an automatic 240-day extension of work authorization while the extension is being processed. In addition, many state Departments of Motor Vehicles have automatically extended expiring driver licenses in light of the pandemic and social distancing guidelines.
If a foreign worker must leave the U.S. for any reason, please notify your FordHarrison attorney or experienced immigration counsel to evaluate whether the worker will be able to return to the U.S. in light of any travel bans in place at that time. In addition, numerous countries outside the U.S. have instituted their own travel restrictions, so it will be important consider those prior to any departure.
Originally published April 30, 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
