On April 22, 2020, President Trump issued a "Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak." The Presidential Proclamation applies only to individuals who are entering as immigrants (green card holders) and who did not have a valid immigrant visa (or green card) prior to the effective date. It does not apply to individuals entering as temporary workers or visitors on nonimmigrant visas.
The Proclamation is effective as of 11:59 EDT on April 23, 2020, and is valid for 60 days unless further extended. There are exemptions for certain healthcare workers and members of the military, as well as spouses and children of U.S. citizens.
Groups Subject to the Suspension
The suspension and limitation on entry only applies to individuals who are attempting to enter as immigrants (green card holders) and who:
- Are outside the United States as of the effective date;
- Do not have an immigrant visa that is valid on the effective date; and
- Do not have certain other types of official travel documents other than a visa (such as an advance parole document).
Groups Excluded From the Suspension
The suspension and limitation on entry does not apply to:
- Any lawful permanent resident who has a valid green card or immigrant visa on the effective date.
- Individuals seeking to enter the United States on an immigrant visa as a physician, nurse, or other healthcare professional; or to perform medical research or other research to combat the spread of COVID-19; or to perform work essential to combatting, recovering from, or otherwise alleviating the effects of the VOD-19 outbreak; and any spouse and unmarried children under 21 of said individuals.
- Individuals applying for a visa to enter the United States pursuant to the EB-5 immigrant investor program.
- Spouses of U.S. citizens and their children under age 21.
- Members of the U.S. Armed Services and their spouses.
- Individuals whose entry would be in the national interest.
Temporary Nonimmigrant Workers and Visitors Are Not Affected by the Proclamation
The Proclamation does not affect individuals seeking to enter the United States as nonimmigrant temporary workers or visitors, nor does it affect nonimmigrant visa processing by United States Citizenship & Immigration Services (USCIS) or the U.S. Department of State (DOS):
- Temporary investor visa application submission and processing will continue to be allowed.
- USCIS will continue to accept and process petitions and applications, including extensions for foreign workers and their family members.
- Nonimmigrant processing of "temporary" visas is not covered, which includes visitors and tourists; F-1 students; H-2A agriculture workers; H-2B temporary workers; H-1B specialty occupation workers; J-1 exchange visitors, including au pairs; K-1 fiancé visas; L-1 intracompany transferees; P-1/2/3 performers; R-1 temporary religious workers; TN (Trade NAFTA) professionals; and VAWA victims of domestic violence.
- USCIS will continue to accept H-1B cap petition filings for those foreign nationals selected in the recent H-1B cap lottery. The selection process ended on March 31, and the petitions must be filed by June 30.
- Employers may initiate and proceed with sponsorship for green cards for foreign workers, but the employee may not complete the process outside the United States during the suspension period.
- Employees with approved employer-sponsored cases may complete the process through adjustment of status within the United States.
- Students and foreign graduates of U.S. colleges and universities with Practical Training employment authorization are allowed to work.
- Naturalization application processing will not be suspended.
Earlier Actions in 2020 That Already Slowed Entry to the United States
- The President restricted foreign citizens' entry into the United States due to COVID-19, imposing arrival restrictions on entry to visitors who had been in China, Iran, the United Kingdom, Ireland, or the Schengen area covering certain European countries (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and Switzerland). Visitors from those countries are banned from entering at any point during the 14 days prior to their scheduled arrival to the United States. Those entry bans have no definite termination date.
- The State Department temporarily suspended routine visa services at all U.S. Embassies and Consulates as of March 20, 2020, with no termination date.
- Refugee admissions have been suspended since March 19 after the United Nations and International Organizations for Migration temporarily halted refugee travel. The U.S. suspension has been extended to May 15, 2020.
- The U.S. borders with Mexico and Canada effectively have been closed to nonessential crossing as March 21, 2020, scheduled for review at 30-day intervals. Under Homeland Security policy, individuals traveling to work in the United States should be considered "essential."
Visitors Prevented From Leaving the United States
While the Proclamation addresses entry into the United States, COVID-19 restrictions are preventing many individuals from departing. Visitors who are in the United States for up to 90 days under the visa waiver program (VWP) with Electronic System for Travel Authorization (ESTA) and are unable to depart the United States before their expiration date may request a 30-day extension for "Satisfactory Departure." The request can only be made within 14 days before the original expiration date. Seeking an extension of stay also may be an option for those with status that is expiring.
For assistance or clarification on any of these issues, contact our office. During this time, Davis Wright Tremaine is dedicated to sustaining operations and providing excellent service. Our firm's technology and dedicated personnel enable us to continue serving clients without any significant interruption in services.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.