The effects of the April 22nd Executive Order on immigration

The effects of the April 22nd Executive Order on immigration

On Monday this week President Trump announced an imminent curb on legal immigration into the United States,  with the stated purpose of protecting American workers in the midst of rapidly rising unemployment due to COVID-19. The announcement gave rise to immediate speculation as to whether the pending Executive Order would ban only the issuance of immigrant visas (i.e. granting permanent residence or “green cards” at U.S. consulates) to allow entry into the U.S., or the measure was far broader, covering applications for permanent residence from inside the U.S. (known as adjustment of status) and even issuance of nonimmigrant visas at U.S. consulates (H1-B, L-1, O-1, B-2 tourist visas e.t.c.).

On Wednesday, the text of the Executive Order was released. As outlined further below, it does not apply to adjustments of status within the United States, or entry into the United States on nonimmigrant visas. To provide a summary:

The suspension will last for 60 days, subject to review and renewal, and applies to entry into the U.S. for those who:

  1. are outside of the United States on the effective date of the Order, being April 23rd 2020;
  2. do not have an immigrant visa (granting permanent residence) on the effective date of the Order; and
  3. do not have a travel document (i.e. advanced parole).

Exemptions 

The measure does not apply to:

  1. those who have already been granted permanent residence;
  2. individuals seeking to enter the United States on an immigrant visa as a healthcare professional (i.e. physician or nurse), medical researchers, “work essential to combating…the effects of COVID-19”, as well as the spouses and unmarried children under 21 years old of those individuals;
  3. individuals seeking entry on immigrant visas under the EB-5 Immigrant Investor Program;
  4. spouses of U.S. citizens seeking immigrant visas;
  5. children of U.S. citizens seeking immigrant visas;
  6. members of the U.S. Armed Forces seeking immigrant visas, and their spouses and children.

The measure includes additional exemptions for some law enforcement personnel seeking immigrant visas, as well as individuals “whose entry would be in the national interest”. This exemption appears to apply to those seeking entry on employment-based National Interest Waiver (“NIW”) immigrant visas.

Nonimmigrant visas 

As stated above, the Executive Order does not touch nonimmigrant visas (H-1B, L-1, O-1, B-2 e.t.c.). However, the text of the Order provides that within 30 days there may be additional “measures appropriate to stimulate the United States economy and ensure the prioritization, hiring and employment of United States workers” with regard to nonimmigrant visa programs.

Comment 

As most visa services at U.S. consulates have been suspended due to COVID-19 restrictions, the Executive Order does not change the current de facto pause on immigration into the United States. The Order does  reserve the ability to renew the suspension after 60 days subject to assessment of labor market conditions at that time.