President issued this proclamation in response to the COVID-19 crisis. As of April 21, 2020, the Centers for Disease Control and Prevention state that there are currently 802,583 cases of COVID-19 in the United States. The disease has caused 44,575 U.S. deaths.
To slow the spread of the disease, the vast majority of states have issued stay-at-home orders, closing non-essential businesses. As a result, over 22 million people have filed for unemployment benefits. Trump has expressed his desire to begin re-opening the country, and putting people back to work. He claims that the proclamation banning new green cards is necessary to protect the jobs of those Americans currently out of work.
On one hand, the White House has tailored this proclamation somewhat narrowly. The green card ban does not affect doctors, nurses, healthcare workers and medical researchers working on combatting the spread of COVID-19, or their spouses and children under age twenty-one. Certain family-based immigrants also escape Trump's green card ban. They include: (1) spouses of U.S. citizens; (2) children, under age 21, of U.S. citizens; (3) prospective adoptees of U.S. citizens; (4) members of the U.S. Armed Forces; and (5) spouses and children of U.S. Armed Forces members.
Other immigrants not affected by the ban are: (1) foreign investors (these are foreigners who have either invested $1 million in the United States and employ ten people, or invested $500,000 in a distressed area and employ five people); (2) Iraqi and Afghani translators; (3) Iraqis and Afghanis who provided special services to the U.S. Government; (4) aliens whose entry would be in the national interest of the United States.
The ban does not affect those who already possess an immigrant visa, or those who are in the United States and applying for an immigrant visa. Thus, an H-1B specialty worker, that is, an alien worker with a temporary employment visa whose job requires a bachelor's degree at a minimum, may still apply for an immigrant visa. There is a question, however, of whether such aliens may leave the United States, have their green card issued at a consulate in a foreign country and return to the United States. If legally possible, such aliens may want to try to adjust to status while still present in the United States.
The ban also does not affect those currently in removal proceedings in the United States, or people who are seeking asylum, withholding of removal, or protection pursuant to the Convention Against Torture. Moreover, law enforcement agencies may still request that individuals necessary for their objectives be permitted to enter the United States.
This is due to the limits to the president's immigration power. In 2018, the Supreme Court held, in the case of Trump v. Hawaii, that the president has broad powers to suspend the entry of aliens who are trying to come into the United States. With respect to aliens already present in the United States, Article I of the U.S. Constitution gives Congress the power to regulate immigration and nationality.
In the introduction to the proclamation, Trump notes that while the U.S. Department of Labor is responsible for issuing labor certifications, such certifications take time to adjudicate, and therefore do not reflect the current U.S. labor market. A labor certification is a determination that there are no U.S. workers who are ready, willing and able to accept a specific job with a U.S. employer. U.S. employers must obtain a labor certification before petitioning for an alien worker to receive an employment-based visa. The employer is required to demonstrate, by engaging in certain recruitment methods, that it is not able to fill a needed position with a U.S. worker. It is a challenging and rigorous process, that can take over a year for the Labor Department to grant.
The proclamation is set to expire sixty days after the effective date. However, it may be extended as necessary.
The President has further called on the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State, other measures that may be appropriate to stimulate the U.S. economy, ensuring that U.S. workers get priority. This may mean that while temporary employment visas are unaffected by this proclamation, such visas in the future may be subject to restriction.
By: William J. Kovatch, Jr.
References
Proclamation Suspending Entry of Immigrants Who May Present a Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak (April 22, 2020).
Trump v. Hawaii, Slip Op. No. 17-965 (June 26, 2018).
Centers for Disease Control and Prevention, "Coronavirus Disease 2019."
Chapman, Steve, "Trump's immigration ban won't help fight COVID-19," Chicago Tribune (April 22, 2020).
Chalfant, Morgan and Bernal, Rafael, "Trump signs executive order limiting immigration," The Hill (April 22, 2020).
Kapur, Shahil, "Trump Halts Immigration for 60 Days. Here's What the President's Order Means," NBC News (April 22, 2020).
Perper, Rosie, "Trumps signs executive order suspending immigration into the U.S. for 60 days," Business Insider (April 22, 2020).
Williams, Pete, "Does Trump have the authority to halt immigration?", NBC News (April 21, 2020).
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