New Executive Order Temporarily Suspends Entry of Certain Immigrants

On April 22, 2020, President Trump signed an Executive Order (“Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak”) temporarily suspending the entry of certain immigrants due to the economic impact of the COVID-19 pandemic. The Executive Order, effective April 23, 2020, is valid for an initial 60-day period and may be extended or modified within this period.

Key Provisions

Applicants who wish to immigrate permanently to the U.S. and who are physically located outside of the U.S. must first apply for and obtain immigrant visas from a U.S. Consulate abroad. Once approved for the immigrant visa, applicants may seek entry and be admitted into the U.S. as lawful permanent residents. The Executive Order narrowly applies to applicants for permanent residence who are outside of the U.S., do not already have a valid immigrant visa (as of April 23, 2020), and do not have valid documents for travel. These applicants are those who are seeking “consular processing” for their immigrant visa stamps before coming to the U.S.

Key Exceptions

The Executive Order has no impact on foreign workers already in the U.S. or those seeking entry into U.S. on temporary nonimmigrant work visas. The Executive Order does not prohibit individuals already in the U.S. from pursuing permanent residence (“green cards”) in filing PERM labor certification applications, immigrant visa petitions or adjustment of status applications. The Executive Order does not apply to the following groups of people:

• any lawful permanent resident of the United States.
• any alien seeking to enter the United States on an immigrant visa as a physician, nurse or other health care professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from or otherwise alleviating the effects of the COVID-19 outbreak, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees;  and any spouse and unmarried children under 21 years old of any such alien who are accompanying or following to join the alien.
• any alien applying for a visa to enter the United States pursuant to the EB-5 Immigrant Investor Program.
• any alien who is the spouse of a United States citizen.
• any alien who is under 21 years old and is the child of a United States citizen, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications.
• any alien whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security or their respective designees, based on a recommendation of the Attorney General or his designee.
• any member of the United States Armed Forces and any spouse and children of a member of the United States Armed Forces.
• any alien seeking to enter the United States pursuant to a Special Immigrant Visa in the SI or SQ classification, subject to such conditions as the Secretary of State may impose, and any spouse and children of any such individual.
• any alien whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security or their respective designees.

Finally, the Executive Order calls for the Secretary of Labor, Secretary of Homeland Security, and Secretary of State to review nonimmigrant programs and consider other “measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.” This review will take place within 30 days of the effective date of the Proclamation (May 23, 2020), which may result in additional restrictions on immigration.

This Executive Order is the latest of several measures already in place restricting travel due to COVID-19, and effectively reducing U.S. immigration. Other measures include:

• On March 14, 2020, President Trump banned the entry of foreign nationals who have been in certain countries within 14 days of traveling to the U.S. These countries include China, Iran, European Schengen area countries, Ireland and the United Kingdom. Although restrictions do not apply to U.S. citizens or lawful permanent residents, these individuals must travel through one of 13 designated U.S. airports for health screen checks.
• Since March 20, 2020, U.S. Embassies and Consulates worldwide have closed and suspended the processing of routine visa applications with the exception of emergency situations, including applications for farm workers and healthcare workers specifically assisting with COVID-19. 
• On March 21, 2020, the U.S., Canada and Mexico agreed to restrict non-essential travel across the shared borders. On April 20, 2020, these restrictions were extended for an additional 30-day period, with exceptions for farmworkers, health care and emergency response workers and other workers that qualify as performing essential services.

Conclusion

Please stay tuned for further updates on the Executive Order and other immigration changes and challenges in the wake of the government’s response to COVID-19. We will continue to provide updates on these important immigration issues. We have already published several, which can be found in the Suggested Reading below.

Please also see Faegre Drinker’s Coronavirus (COVID-19) Resource Center for additional updates on the legal, regulatory and commercial implications of COVID-19.