Ramifications of White House Green Card Ban

On April 22, 2020, President Donald Trump signed a presidential proclamation suspending the entry of aliens who are outside of the United States, and who either do not currently have a valid immigrant visa, or who do not have an official travel document permitting that alien to travel to the United States.  An immigrant visa is one that permits an alien to live in the United States permanently.  Such immigrants are legal permanent residents, or, colloquially, are said to hold a green card.  The proclamation is effective April 23, 2020 at 11:59pm, eastern daylight savings time.

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).

Temporary Protected Status (TPS) Granted to Liberia, Guinea and Sierra Leone

Almost lost in the media attention given to the President's announcement on immigration yesterday was an announcement by the Department of Homeland Security extending Temporary Protected Status, or TPS, to Liberia, Guinea and Sierra Leone.  The move is meant to permit people who are present in the United States as of November 20, 214 to remain here for eighteen months while the Ebola outbreak continues in their home countries.

Those who qualify for the protection have until May 20, 2015 to apply.

TPS is a status designated by the U.S. Government to countries when it would be inhumane to require nationals from that country to return home.  Is permits people who are present in the United States to remain here without fear of deportation.  Aliens granted TPS may be given work authorization.

TPS does not lead to permanent residency or citizenship.  It is merely a temporary status, that expires once the U.S. Government determines that the conditions in the home country have improved.

TPS has been extended in the past due to such humanitarian reason as war and natural disasters.

By:  William J. Kovatch, Jr.
(703) 837-8832
wkovatch@kovatchlegalservices.com

H-1B Specialty Workers Cap Season Open

April 1rst marks the beginning of the H-1B cap season.  The H-1B visa is a temporary visa available for U.S. companies seeking to hire a foreign worker for a position that qualifies as a specialty worker.  In general, specialty workers are those positions which require a bachelor's degree or higher.

Every year, 65,000 visas are available for specialty workers.  An additional 20,000 visas are available for specialty workers who hold a masters degree or higher from a U.S. institution.

Applications for the H-1B visas can be filed up to six months before the beginning of the fiscal year.  That means that the first day that H-1B visa petitions can be filed is April 1 for visas that will be valid starting on October 1.

A few years ago, there were more petitions filed during the first week of April than there were visas available.  However, for the past few years, visas have remained available for a few months after April 1.  With the economy showing signs of bouncing back, there is a possibility that all of the available visas will be taken in a short period of time.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimigrationlaw.com

An Overview of the Process to Hire Foreign Science, Technology, Engineering and Math Workers

In the push for comprehensive immigration reform, U.S. businesses are pressing for more visas for science, technology, engineering and math ("STEM") workers.  Even on the campaign trail, Governor Romney stated that every science and math student graduating from a U.S. institution should have a green card stapled to the diploma.

But how difficult is it to get a visa for a foreign STEM worker?  The fact is that the process is tedious.  Moreover, a foreign worker can wait years for a permanent residency visa to become available.

In the article linked here, I give an overview of the process of hiring a foreign STEM worker, both on a temporary visa and on a permanent residency visa.  The process takes planning, resources and effort.  Most STEM workers start off with an H-1B temporary visa for specialty workers.  Annual quotas are tight, and deadlines are important.

Hiring a foreign worker permanently requires an effort to show that there are no U.S. workers who are ready, willing, able, and available to fill the position.  This is called the labor certification process, and requires that the employer go through a recruiting process.

Even after a visa petition is granted, because of annual limits, it may take years for the visa to be available.  If a worker is employed through an H-1B visa, it takes coordination and timing to make sure that the worker can remain in the United States until the permanent residency visa is available.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Business Professionals from Canada and Mexico: The TN Visa

Citizens from Canada and Mexico may apply for temporary admission to the United States to engage in business activities at a professional level.  This is known as the TN non-immigrant classification.

The TN visa is a result of the North American Free Trade Agreement.  Appendix 1603.D.1 of Annex 1603 of the NAFTA provides a list of professional activities that are eligible for TN classification.  Generally, the professional activities require a bachelor’s degree or higher.  Among the professionals listed are lawyers, engineers, accountants, computer systems analysts, teachers and graphic designers.

The visa is initially issued for a three year period.  It is a multi-entry visa, which means that the visa holder may travel outside of the United States and return during the three year period without applying for a new visa.  The visa holder may apply for an extension while in the United States.  Extensions can be granted in up to three year intervals.

Canadian citizens may apply at a U.S. port of entry.  A citizen of Mexico must apply at a U.S. consulate in Mexico.  To apply, the applicant must show proof of citizenship, and a letter from the prospective employer stating the applicant’s professional capacity, the purpose of the stay, the length of stay, and the applicant’s educational qualifications. The applicant may also need to provide credential evaluations.

There are no limits on the number of extensions that a person may apply for.  However, the U.S. Government must be convinced that the proposed stay is temporary.  That is, the applicant must show that the work will end at a predictable time, and that the applicant will return to his or her country once the work is completed.

More information on the TN visa can be found at the U.S. State Department's website.

By:  William J. Kovatch, Jr.

(703) 837-8832

info@kovatchimmigrationlaw.com