LawFlash

US Imposes Temporary Ban on Issuance of Green Cards Overseas

April 23, 2020

President Donald Trump signed a proclamation on April 22 suspending entry into the United States of certain groups of immigrants who would otherwise be eligible to enter the United States as permanent residents. There are a number of significant exceptions to this new policy, including for temporary workers and individuals currently in the United States. Here is what the restrictions mean for employers.

The proclamation suspends entry into the United States of many immigrants who would otherwise be eligible to enter the United States as permanent residents, and instructs US consular officials outside the United States not to issue immigrant visas to various classes of applicants. At the same time, there are significant exceptions to the suspension, including for spouses and children under 21 of US citizens.

Significantly, the new restrictions do not affect

  • current permanent residents;
  • people already in the United States;
  • individuals seeking to enter the United States to work on a temporary basis (nonimmigrant visa holders); or
  • applicants for adjustment of status to permanent residence in the United States.

Who Is Subject to the New Restrictions?

Subject to several important exceptions discussed below, the new restrictions apply to individuals who are applying for an immigrant visa at a US consulate outside the United States. More specifically, subject to the exceptions, the proclamation suspends entry into the United States of intending immigrants who

  • are outside the United States on the effective date of the proclamation (11:59 pm ET, April 23, 2020); and
  • do not have an immigrant visa that is valid on the effective date of the proclamation.

The proclamation instructs US consular officials that they should not issue immigrant visas to many groups of individuals who have gone through the often lengthy green card sponsorship process and who otherwise qualify for permanent resident status in the United States. Those who are subject to the suspension include family-based and employment-based immigrant visa applicants who are

  • parents and adult children of US citizens;
  • immediate relatives (spouses and children) of permanent residents;
  • siblings of US citizens;
  • employment-based immigrants including
  • EB-1 individuals of extraordinary ability and outstanding researchers;
  • EB-2 individuals with advanced degrees, exceptional ability, or waivers of the labor certification requirement in the national interest; and
  • EB-3 professional and skilled workers.

Until the restrictions are lifted, a person who is not eligible for one of the exceptions below will be unable to get an immigrant visa for travel to the United States and admission as a permanent resident. Importantly, the restrictions are limited in scope to applicants for immigrant visas and do not apply to applicants for nonimmigrant or temporary work or visitor visas.

Who Is NOT Subject to the New Restrictions?

Nonimmigrants: Because the proclamation applies only to immigrants seeking to enter the United States, the suspension does NOT apply to temporary workers (nonimmigrants) who are currently in the United States or to those who seek to enter the United States as nonimmigrants, including

  • temporary workers and their dependents in the E, H, L, O, and P classifications;
  • students and exchange visitors in the F, J, and M classifications; and
  • visitors eligible for the visa waiver program (ESTA) or who have a B-1 or B-2 visitor visa.

Foreign Nationals in the United States: The proclamation does not affect individuals who are currently in the United States, including those who are in the PERM, I-140, or adjustment of status to permanent resident process. The proclamation does not restrict applications for adjustment of status (permanent residence; Form I-485) filed with US Citizenship and Immigration Services (USCIS).

Immigrant Visa Applicants: The restrictions on the issuance of immigrant visas do not apply to the following:

  • Individuals who are already lawful permanent residents of the United States
  • Physicians, nurses, or other healthcare professionals seeking to perform medical research or other research intended to combat the spread of the coronavirus (COVID-19); or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak, as determined by the US Secretary of State, the Secretary of Homeland Security, or their respective designees; and any spouse and unmarried children under 21 years old who are accompanying or following to join the individual
  • EB-5 Immigrant Investor Program applicants
  • Spouses of US citizens
  • Children under 21 years old of a US citizen, or prospective adoptees seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications
  • Individuals whose entry would further important US law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the US Attorney General or his designee
  • Members of the US Armed Forces and any of their spouses and children
  • Individuals seeking to enter the United States pursuant to a Special Immigrant Visa in the SI or SQ classification, subject to such conditions as the Secretary of State may impose, and any spouse and children of any such individual
  • Individuals whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees
  • Individuals who already possess an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of the proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission

How Long Will These Restrictions Remain in Place?

The restrictions will be in place for an initial 60-day period and can be extended.

Although the scope of the restrictions is relatively limited, all travelers remain subject to current COVID-19 travel restrictions. Similarly, although the proclamation does not impact those who are eligible to apply for a nonimmigrant visa, as a practical matter such individuals are currently unable to do so due to consular closures.

Is the Proclamation Lawful?

Legal challenges to the executive order are expected; however, the president’s authority to issue an order along these lines may find support in 42 U.S.C. §265 and the recent US Supreme Court decision in Trump v. Hawaii, No. 17-965, 585 U.S. ___; (2018); 138 S. Ct. 2392; 201 L. Ed. 2d 775, which upheld Executive Order 13,780 banning entry of nationals from several predominantly Muslim countries.

Is There Anything Else in the Proclamation?

Additional elements of the proclamation include:

  • A requirement that within 30 days the Secretaries of Labor, Homeland Security, and State perform a review of nonimmigrant programs and make recommendations on “other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”

What Does This Mean for US Employers?

The practical impact of the executive order on US employers is likely to be quite limited. Most US employers who sponsor individuals for permanent residence complete the process within the United States, and not from abroad. Moreover, in most cases the foreign national worker is already in the United States on a temporary work visa while concurrently pursuing permanent residence. Accordingly, a restriction on the issuance of green cards abroad to applicants who are applying at US consulates will probably have little impact on US employers and their foreign national employees who are employed in the United States.

Family-based immigrants who are subject to the proclamation, principally the immediate relatives of permanent residents, will feel the bulk of the impact of the new restrictions. The new policy restricts issuance of immigrant visas (which lead to green cards) to individuals applying from abroad. Family-based immigrants are more likely than employment-based immigrants to be outside the United States awaiting the opportunity to submit their immigrant visa applications at a US consulate.

The requirement in the proclamation that the three cabinet secretaries consult and review current nonimmigrant programs and report on their economic impact, within 30 days, may foreshadow future restrictions on nonimmigrant visa programs. Similarly, as is typical for an election year, the issue of immigration is likely to be increasingly politicized, with unknown consequences.

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Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Washington, DC
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Eleanor Pelta
Eric S. Bord

Miami
Laura C. Garvin

San Francisco
A. James Vázquez-Azpiri
Christina M. Gonzaga