On April 22, 2020, President Trump issued a proclamation temporarily suspending entry of certain immigrants to the U.S. Below please find a summary of the President’s Proclamation[1]. The Proclamation becomes effective on Thursday, April 23, 2020 at 11:59 PM (ET), and suspends the entry of any individual seeking to enter the U.S. as an “immigrant” who:
- Is outside the United States on the effective date of the Proclamation;
- Does not have a valid immigrant visa on the effective date; and
- Does not have a valid official travel document (such as a transportation letter, boarding foil, or advance parole document) on the effective date, or issued on any date thereafter that permits travel to the United States to seek entry or admission.
“Immigrants” include foreign nationals intending to live and work permanently in the United States. In contrast, “non-immigrants” include foreign nationals seeking to enter the United States on a temporary basis for tourism, business, and certain types of temporary work, among other purposes. At this time, non-immigrant visa holders are not included in the Proclamation.
The following categories are exempted from the Proclamation:
- Lawful permanent residents (LPR);
- Individuals and their spouses or children seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional to perform work essential to combatting, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak (as determined by the Secretaries of State and Department of Homeland Security (DHS), or their respective designees);
- Individuals applying for a visa to enter the U.S. pursuant to the EB-5 immigrant investor visa program;
- 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 visa;
- Individuals who would further important U.S. law enforcement objectives (as determined by the Secretaries of DHS and State based on the recommendation of the Attorney General (AG), or their respective designees);
- Members of the U.S. Armed Forces and their spouses and children;
- Individuals and their spouses or children eligible for Special Immigrant Visas as an Afghan or Iraqi translator/interpreter or U.S. Government Employee (SI or SQ classification); and
- Individuals whose entry would be in the national interest (as determined by the Secretaries of State and DHS, or their respective designees).
It is within the discretion of the consular officer to determine if an individual is within one of the exempted categories outlined above.
As stated above, at this time, non-immigrant visa holders are not included in the Proclamation. However, the Proclamation requires that within 30 days of the effective date, the Secretaries of the U.S. Department of Labor (DOL) and of the Department of Homeland Security (DHS), in consultation with the Secretary of State, shall review nonimmigrant programs and recommend to the President other appropriate measures to stimulate the U.S. economy and ensure “the prioritization, hiring and employment” of U.S. workers.
The Proclamation also states that it does not limit the ability of individuals to apply for asylum, refugee status, withholding of removal or protection under the Convention Against Torture. The Proclamation further states that individuals who circumvent the application of this proclamation through fraud, willful misrepresentation or illegal entry will be prioritized for removal.
If any provision of the Proclamation, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of the proclamation shall not be affected.
President Trump’s Proclamation is scheduled to expire 60 days from April 23, 2020 but may be continued as the President deems necessary. Within 50 days from the effective date, the Secretary of DHS shall, in consultation with the Secretaries of State and DOL, recommend whether the President should continue or modify the proclamation. Companies and individuals with ongoing or prospective immigration processes and their employees, colleagues or family members who may be affected by the Proclamation should consult with counsel on individual situations. We remain available to answer your questions.
If you have any questions, please contact Gunster attorneys Sarah Tobocman, Mariana Ribeiro, Beatriz Osorio, and Maria Romero.
[1] The summary provided is based upon information published by the American Immigration Lawyers Association (“AILA”) on April 22, 2020 on its website, (www.aila.org).
