Trump To Bar Green Card Seekers For 60 Days Due To Virus

By Suzanne Monyak
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Law360 (April 21, 2020, 6:49 PM EDT) -- President Donald Trump will soon sign an executive order temporarily barring foreigners seeking green cards from coming to the U.S., saying the measure would help support Americans who lost their jobs as a result of the coronavirus pandemic.  

Trump said at a Tuesday press conference that the upcoming order, which could be signed as soon as Wednesday, will affect those seeking green cards but will not block those entering as tourists, as students or on temporary work visas.

The ban could bar spouses and relatives of U.S. citizens as well as foreign workers coming to the U.S. on employment-based green cards, though the president did not specify and said the order would include some exemptions. Farmworkers, however, will not be affected, Trump said.

Trump said the order would "help put unemployed Americans first in line for jobs as America reopens."

"It would be wrong and unjust for Americans laid off by the virus to be released with new immigrant labor flown in from abroad," he said. "We must first take care of the American worker."

The pause will remain in effect for 60 days, at which point officials will reexamine economic conditions. Trump didn't offer concrete details on what type of economic improvement would merit a lifting of the restrictions.

"We'll have to see," Trump said when asked about it at Tuesday's press conference. "I hope we're in that position to have that debate. Right now we're not in that position."

While individuals on temporary work visas, like the H-1B specialty occupation visa, are not covered by the order, the president hinted that more restrictions may be forthcoming. He also said his administration is considering a secondary order later on.

"As we move forward, we will become more and more protective" of U.S. workers, the president said.

The president's announcement came after he set off a wave of confusion the night before when he tweeted, shortly after 10 p.m., that he would be signing an executive order "to temporarily suspend immigration into the United States" while offering no other details.

In his tweet, he cited the spread of the coronavirus, or what he called the "invisible enemy," as well as surging U.S. unemployment as a result of forced business closures during the pandemic.

The White House has yet to release a final copy of the order, but the announced restrictions appear to be far less sweeping than some immigrants and attorneys had feared.

Ali Brodie, a partner at Fox Rothschild LLP who represents both individuals and corporations on immigration matters, told Law360 on Tuesday that her clients immediately started contacting her with questions that night after the president's tweet.

"It caused and will continue to cause a tremendous amount of panic, both with individuals and with companies," she said Tuesday before the president's press conference.

David Bier, an immigration policy analyst at the Cato Institute, also said earlier Tuesday that he didn't believe the administration would fully pause the immigration system, such as by targeting foreign workers already legally in the U.S., given recent measures to ease the visa process for attorneys during the pandemic. U.S. Citizenship and Immigration Services recently waived "wet ink" signature requirements on forms and biometrics appointments for work permit renewals.

Most immigration from abroad has already been paused as a result of the coronavirus pandemic. The U.S. Department of State has paused routine visa processing, with exceptions for migrant farmworkers and foreign doctors, and USCIS has suspended in-person interviews and naturalization ceremonies.

The administration has also issued travel restrictions against people who have recently visited Ireland, the United Kingdom, European Union, China and Iran, closed the U.S. borders with Mexico and Canada to nonessential travel, and blocked all asylum claims at the U.S. borders under a public health law.

This all on top of Trump's existing travel ban, which imposes additional travel and visa restrictions against people from a number of Muslim-majority and African nations.

"I think this is mainly a PR push by the president to highlight what's already been done," Bier said Tuesday morning of the president's tweet. "If you've already suspended immigration, you might as well throw that meat to the base."

It's unclear what legal authority the latest restrictions will draw upon, but many attorneys have predicted that the order will be issued under the same legal provision used in the president's infamous travel ban, which allows the executive to block foreigners from entering the U.S. to protect national security.

The U.S. Supreme Court upheld that legal provision in 2018 in a case challenging the travel ban, with Chief Justice John Roberts writing in the majority opinion that the statute "exudes deference to the President in every clause."

It remains to be seen what categories of would-be immigrants might be exempted in the new order's final version, such as spouses or children of American citizens.

Doug Rand, who worked on immigration policy under the Obama administration and now leads a tech company that helps immigrants obtain green cards, warned that entirely halting green card processing abroad beyond a temporary embassy closure could carry drastic implications for the U.S. economy and demographic makeup for years to come.

"Reasonable minds can disagree about whether to temporarily pause nonessential travel during a pandemic. But there's no excuse for using the pandemic as a pretext to separate families and cut off future access to who gets to be an American citizen," Rand told Law360 on Tuesday.

A White House spokesperson didn't return a request for more information late Tuesday.

--Editing by Breda Lund.

For a reprint of this article, please contact reprints@law360.com.

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