IMMIGRATION ALERT: The Presidential Proclamation temporarily curbing immigration in light of COVID-19

The Coronavirus Disease 2019 (COVID-19) has brought one of the most flourishing economies to a halt. It has not only affected the health and the way of living but has also led to businesses shutting down temporarily or permanently, leading to unemployment numbers in the U.S. reach a new high. In April itself, more than 22 million Americans filed for unemployment and are struggling to make ends meet during this time of crisis.

Recognizing the increase in unemployment and the stress on the healthcare system, the President on April 22, 2020, issued a Proclamation temporarily suspending the entry of immigrants who present an economic and healthcare risk to the U.S. due to the COVID-19. The Proclamation has been passed pursuant to the powers vested in the President as per the Immigration and Nationality Act, which allows the President to suspend entry of any non-citizens, whose entry would be “detrimental to the interests of the United States.” The Proclamation comes into effect on April 23, 2020, at 11:59 pm (EDT) and remains in effect for a period of 60 days, which may be extended based on consultations.

Suspension and Limitation

The Proclamation suspends and limits the entry of immigrants into the U.S. for a period of 60 days if the immigrants: (i) are currently outside the U.S.; (ii) do not have a valid immigrant visa; or (iii) do not have an official travel document other than a visa (such as transportation letter, etc.).

In simpler terms, the Proclamation seeks to put a halt on employment-based and family-based immigration visas, as well as the Diversity Visa Lottery.

It shall be noted that the Proclamation in no way applies to the immigrants currently present in the U.S. or limit the ability of an immigrant to seek asylum, refugee, refugee status, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Exceptions

The Proclamation specifically enlists the exceptions and clarifies that the suspension and limitations are not applicable to (i) lawful US permanent residents; (ii) an immigrant seeking to enter the U.S. as a physician, nurse or other healthcare professional, as well as their spouse and unmarried children under 21; (iii) EB-5 immigrant visa applicant; (iv) Spouse of a U.S. citizen; (v) Children under 21 of U.S. citizens and prospective adoptees in the IR-4 or IH-4 visa classifications; (vi) immigrants whose entry would further U.S. law enforcement; (vi) Members of the U.S. armed forces and their spouses and children; (vii) Special Immigrants in the SI or SQ classification, and their spouse and children; and (vii) immigrants whose entry is in the U.S. national interest.

These exceptions do not apply automatically and are subject to eligibility determination by the consular office.

Enforcement

The Secretary of State and the Secretary of Homeland Security have been authorized to consult each other and set procedures at their discretion for the implementation of the Proclamation.

Further, an immigrant who tries to violate the Proclamation through fraud, willful misrepresentation of a material fact, or illegal entry will be prioritized for removal (deportation).

Impact on the non-immigrants

The Proclamation does not have an immediate impact on the OPT, H-1B, L-1, and other non-immigrant visas. However, the Secretary of Labor and Secretary of Homeland Security in consultation with the Secretary of State, may within 30 days of the effective date of the Proclamation, review and recommend measures regarding non-immigrant programs to assist the stimulation of the U.S. economy and ensure that the hiring and employment of U.S. workers are prioritized.

Opponents

While the proponents of this Proclamation and the groups wanting to curb immigration have been disappointed that the order is temporary and does not extend to non-immigrant visas, in totality, the Proclamation has been facing a lot of opposition due to the following reasons:

— In times, when the U.S. is leading the world in the number of confirmed cases and approximately 50,000 deaths, the president has issued an order which is focused on economics rather than health.

— There is a prima facie bias visible in the wordings of the order, as EB-5 investors have been exempted from the suspension and limitation, while other immigrants who have received the approvals legally over years of struggle are faced with an uncertainty today.

— Economic researchers have found the premise of the executive order, that reducing legal immigration would lower the U.S. unemployment rate, is flawed. Rather it is being argued that immigrants may be able to (i) create employment by starting their own businesses, (ii) increase the consumer demand, and (iii) prevent manual intensive labor jobs from being offshored.

— Many also fear that the ban may be temporary currently, but may soon be extended indefinitely or bring even the immigrants within the U.S. or non-immigrant visa programs under its purview.

In conclusion, the Proclamation seeks to achieve the objectives of limiting the spread of COVID-19, reducing the pressure on the U.S. healthcare system, and preserving jobs for American workers as the U.S. economy recovers. While the Proclamation has come into force, many still continue to debate the drawbacks of imposing restrictions on legal immigration and question the President’s authority to issue such executive orders. It is foreseeable that the Proclamation will be challenged in the near future, however, whether the courts uphold it or not, is yet to be seen.

Sweekrutha Shankar, Esq. is a contributing author.