By Samuel Mudrick and Gregory Wald

Law360 (April 24, 2020, 7:05 PM EDT) --

Samuel Mudrick

Gregory Wald

On April 22, two days after teasing a temporary halt to U.S. immigration, President Donald Trump issued the first of what may be multiple presidential proclamations in response to the COVID-19 pandemic aimed at stemming U.S. immigration.

The proclamation,[1] which is more limited than many expected, centers on a 60-day U.S. entry ban for certain foreign nationals applying to permanently enter the U.S. on immigrant visas, also known as green cards, but does not directly affect nonimmigrant visas used to temporarily visit, study or work in the U.S., such as the popular H-1B, TN, F-1 or B-1/B-2 visas.

The following are answers to questions U.S. employers may have in response to the proclamation.

Why Now?

Trump deemed the temporary immigration suspension necessary due to the nation's current "high domestic unemployment and depressed demand for labor" and the need to allow consular officers to focus on providing "services to [U.S. citizens] abroad."

He further explained that "[e]xisting immigrant visa protections are inadequate for recovery from the COVID-19 outbreak" and that "introducing additional permanent residents when our health care resources are limited puts strain on the finite limits of our health care system at a time when we need to prioritize Americans and the existing immigrant population."

Who Will Be Affected?

The proclamation, which became effective at 11:59 p.m. EDT on April 23, only applies to immigrants seeking permanent entry into the U.S., not nonimmigrants entering temporarily to work, study or visit. Further, only immigrants who meet all three of the following requirements are subject to the proclamation:

• Were outside the U.S. on the proclamation's effective date;
• Did not have a valid immigrant visa on the proclamation's effective date; and
• Do not have an official travel document other than a visa that permits travel to the U.S., and seeking entry or admission.

Interestingly, the travel documents referred to above may be valid on the proclamation's effective date or issued thereafter, and may include a transportation letter, an appropriate boarding foil or an advance parole document. Such documents are often provided to applicants as part of immigrant visa and green card petitions.

Further, the proclamation explicitly exempts the following categories of individuals:

• U.S. lawful permanent residents (green card holders);

• Those seeking to enter 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;

• Those applying for a visa to enter the U.S. pursuant to the EB-5 immigrant investor program;
  

• The spouse of a U.S. citizen;
  

• A child of a U.S. citizen or a prospective adoptee in the IR-4 or IH-4 visa categories (under 21 years of age in both cases);
  

• Anyone whose entry would further important U.S. law enforcement objectives, as determined and recommended by certain senior U.S. government officials;
  

• Members of the U.S. armed forces, and their spouses and children;
  

• Individuals seeking entry on a special immigrant visa in the SI or SQ classification, along with their spouses and children; and
  

• Anyone whose entry would be in the national interest, as determined by certain senior U.S. government officials.

The proclamation includes enough exceptions that it will likely only affect a small percentage of all employment-based petitions — those filed through U.S. embassies and consulates abroad.

The majority of U.S. employers rely on adjustment of status, processed from within the U.S., for their employees to obtain lawful permanent resident status and the proclamation's outward-facing restrictions do not appear to directly affect such cases.

Family-based immigrant visas will be widely affected. The proclamation does not apply to applicants for asylum, refugee status or certain other international human rights categories.

In its current form, the proclamation may have little actual effect on its targets if it lasts only 60 days since the same U.S. embassies and consulates that are being instructed to halt approvals of immigrant visas are already closed due to COVID-19's rapid expansion across the globe.

If those embassies and consulates are reopened I before 60 days pass, or if the proclamation is extended or expanded, its impact will be greater.

Although this proclamation is limited in scope, it arrives against a broad backdrop of existing COVID-19 immigration restrictions and bans that make even routine immigrant and nonimmigrant visa processing difficult and, at times, impossible. Routine consular visa operations at nearly all U.S. embassies and consular posts around the world have been suspended[2] since mid-March and U.S. Citizenship and Immigration Services has temporarily suspended in-person services through at least May 3, including in-person interviews and biometrics processing related to U.S.-based green card applications.

Also, the U.S. has established extensive travel bans, including bars to entry from many countries, and significant restrictions at U.S. borders with Canada and Mexico.

These existing restrictions have resulted in significant delays in visa processing and employers unable to fill many U.S. positions.

How Long Will It Last?

The proclamation will remain in effect for 60 days and can be extended or modified.

Is There More to Come?

The proclamation explicitly requires the secretaries of the U.S. Department of Labor, the U.S. Department of Homeland Security and the U.S. Department of State to review nonimmigrant programs and recommend "other measures appropriate to stimulate the [U.S.] economy and ensure the prioritization, hiring, and employment of [U.S.] workers."

The president stated that his team is evaluating a nonimmigrant proclamation with carveouts for certain industries, such as farming and health care.

It is unclear whether a nonimmigrant proclamation is imminent, but many initially believed the present proclamation would extend beyond green cards, so additional action is certainly possible. This is even more likely if the economy does not rebound quickly and unemployment continues to rise.

Restrictions on nonimmigrant visas would likely have a wider effect on U.S. employers who use employment visas more expansively than immigrant visas to fill positions that are not readily filled by available U.S. workers. A nonimmigrant proclamation surely would face broad opposition from U.S. employers.

Will It Stand Up in Court?

As with the president's other immigration-related proclamations and executive orders, court challenges are likely. The White House appears to have learned from the judicial hurdles that confronted its prior executive orders and proclamations.

This proclamation's limited scope and numerous exceptions, coupled with the broad executive immigration powers contained within Section 1182(f) of the Immigration and Nationality Act, means it stands a solid chance of withstanding judicial scrutiny, although lower courts may succeed in temporarily halting its effects. Section 1182(f), as recognized by the U.S. Supreme Court in its 2018 decision, Trump v. Hawaii, upholding the third iteration of the president's initial travel ban, authorizes the president to "suspend the entry of all aliens or any class of aliens" whenever he finds that their entry "would be detrimental to the interests of the United States."

Employers should move forward as if the courts have upheld the legality of this proclamation or subsequent decrees, taking all possible precautions to preserve their workforce, foreign nationals included. As described below, this will surely include reviewing current practices in relation to immigration sponsorship, and developing new strategies to account for the fast-changing landscape. This should also include individual or concerted industry outreach to government decision makers in the executive and legislative branches.

What Actions Should Employers Take?

First, employers should closely evaluate whether they have any employees immediately affected by the proclamation, or who may be affected in the coming months since the proclamation could easily be extended and expanded to cover nonimmigrant (temporary) visa holders.

Where employers have implemented blanket policies relating to the situs of immigration visa processing, be it adjustment of status applications filed within the U.S or consular applications adjudicated at U.S. embassies and consulates abroad, an individual analysis will be required for each affected employee. If the employee is already in the U.S., this may also require the extension of an underlying nonimmigrant status.

Second, employers should examine visa options for all current and prospective foreign national employees with pending immigrant and nonimmigrant petitions, or petitions that will require renewal in the coming six to 12 months.

Current foreign national employees in the U.S. should avoid international travel, when possible, and file extensions well in advance of their expiration dates, especially given the USCIS suspension of premium (expedited) processing. Employees currently outside the U.S. should secure the first available visa interview once U.S. embassies and consulates resume normal operations during the coming weeks or months.

Furthermore, as we transition into a post-COVID-19 environment, companies with globally mobile workforces will need to keep tabs over the ever changing, lingering travel restrictions and quarantine measures imposed by countries across the globe.

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Samuel J. Mudrick and Gregory A. Wald are partners at Squire Patton Boggs LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-immigrants-present-risk-u-s-labor-market-economic-recovery-following-covid-19-outbreak/.

[2] https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html.

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