Immigration Under COVID-19: U.S. Halts Entry of Certain Foreign Nationals to Protect Labor Market

There have been many changes to immigration processes and procedures in the United States as a result of the coronavirus pandemic, and more are likely to come. Holland & Knight's third installment of employer alerts focusing on immigration under COVID-19 summarizes the executive order suspending certain immigration activities signed by President Donald Trump on April 22, 2020. (See Holland & Knight's previous alerts, "Immigration Procedural Updates, Changes and Suspensions as a Result of COVID-19," March 24, 2020, and "Immigration Under COVID-19: Public Charge Rule," April 3, 2020.)

What is the official name of the executive order?

The order is known as the Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.

When does the executive order take effect?

The effective date is 11:59 p.m. ET on April 23, 2020.

What is the purpose of the executive order?

During the 60 days from the effective date, entry into the United States will be suspended for foreign national immigrants who:

• are outside of the United States on the effective date
• do not have a valid immigrant visa (i.e., green card) on the effective date

And

• do not have a valid travel document (such as a transportation letter, a boarding foil or an advanced parole document) other than a visa that is valid on the effective date or issued any date after the effective date that permits travel, entry or admission to the U.S.

Who is exempt from the executive order?

The proclamation does not apply to the following foreign nationals:

• lawful permanent residents (i.e., those with a valid green card)
• any foreign national requesting entry into the United States on an immigrant visa as a physician, nurse or other healthcare professional to perform medical research or other research to combat the spread of or to perform work essential to combating COVID-19, recovering from or otherwise alleviating the effects of COVID-19, as determined by the Secretary of State, the Secretary of Homeland Security or their respective designees, and any spouse and unmarried children under 21 years of age of any such foreign national who are accompanying or following to join the foreign national
• any foreign national applying for a visa to enter the U.S. pursuant to the EB-5 Immigrant Investor Program to encourage foreign investment in U.S. businesses
• any foreign national who is a spouse of a U.S. citizen
• any foreign national who is under 21 years of age and is the child of a U.S. citizen or who is a prospective adoptee seeing entry into the U.S. pursuant to the IR-4 or IH-4 visa classifications
• any foreign national whose entry into the U.S. would further important U.S. law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security or their respective designees, based on the recommendation of the Attorney General or his designee
• any foreign national who is a member of the United States Armed Forces and his or her spouse and children
• any foreign national seeking to enter the U.S. pursuant to a Special Immigrant Visa in the SI or SQ classifications, subject to any conditions the Secretary of State may impose, and any spouse and children of any such foreign national
• any foreign national whose entry into the U.S. is of national interest, as determined by the Secretary of State, the Secretary of Homeland Security or their respective designees

How to determine if someone falls into one of the exempted categories listed above?

Consular Officers have discretion to determine if any individual falls within one of the above exempted categories.

How is a U.S. work visa holder affected by the executive order?

Nonimmigrant visa holders, such as foreign nationals holding an L-1, H-1B, O or other temporary U.S. work visa, are not included or negatively impacted. However, the proclamation does require that within 30 days of the effective date, the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State, review nonimmigrant programs and recommend to the president other measures to stimulate the U.S. economy and "ensure the prioritization, hiring and employment of United States workers."

Who else is excluded from the proclamation?

Foreign nationals seeking asylum, refugee status, withholding of removal or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment are not covered or otherwise restricted by the order.

What if someone is determined to be eligible for entry under an exempted category?

If someone is determined to be a foreign national falling within one of the exempted categories, they will be authorized to enter the U.S. accordingly. However, if the person is later deemed to have been approved as eligible under such exempted category through fraud, willful misrepresentation of a material fact or illegal entry, their removal from the United States by the Department of Homeland Security will be prioritized.

How Can Holland & Knight Assist You?

Holland & Knight has a solid team of transactional and litigation lawyers very skilled at analyzing options, preparing and submitting petitions and applications for immigration benefits and suing the government, as and when necessary. Even though we are working remotely at this time, we remain available to assist you in discussing options and taking any action needed. If you have any questions about the current immigration landscape, please contact Tara Vance or another member of Holland & Knight's Immigration, Nationality and Consular Team.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the author of this alert for timely advice.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.